author: Benham, Judge. Banke, Presiding Judge,

text:
    74138.
    WATKINS v. THE STATE.
    (360 SE2d 47)
   Benham, Judge.

Appellant was convicted of aggravated assault and obstructing an officer. On appeal, he contends that the evidence was insufficient to support the conviction for aggravated assault and that he was entitled to a directed verdict of acquittal on the obstruction of an officer charge.

The aggravated assault charge resulted from an episode of domestic violence involving appellant and his wife, Delois Smith. A police officer testified that appellant and Smith were still embroiled in the dispute when the officer arrived at their home in response to an emergency call for help from Smith, and that the officer was told by Smith that appellant had beaten her with a chair, threatened her with a gun, and stabbed her with a pair of scissors. The officer also testified that after Smith told her where the scissors were, the officer found them, along with a knife and a gun. Smith identified the scissors to the officer as those with which appellant had stabbed her and showed the officer a fresh stab wound on her back and blood on her clothes. Two emergency medical technicians called to the scene testified that Smith had a fresh puncture wound on her back and blood on her clothing. One of them testified that the wound was consistent with having been inflicted by the scissors. Several witnesses testified that the scene was disordered, as by violence.

Testifying for the defense at trial, Smith recanted her statements to the police, but did admit on cross-examination that she had made the statements at the time of the incident. She also testified that she and appellant had reconciled their differences about a week after his arrest. Appellant testified on his own behalf, denying that he stabbed Smith, but admitting that he had held the scissors to her back in order to force her to drop the gun with which she was threatening him.

The charge of obstructing an officer arose from appellant’s violent resistance to being arrested for aggravated assault. The evidence is uncontradicted that it took four men to restrain appellant. Even so, they were unable to handcuff appellant without his cooperation, which he finally gave after the combatants had reached a stalemate.

1. As to the aggravated assault charge, appellant’s argument is that since Smith recanted the statements she made at the scene, there is insufficient probative evidence to convict him on that charge. We note, however, that testimony of Smith’s statements to the police officer regarding the stabbing was substantive evidence of appellant’s guilt (Gibbons v. State, 248 Ga. App. 858 (286 SE2d 717) (1982)), despite Smith’s subsequent recantation. Brown v. State, 175 Ga. App. 246 (1) (333 SE2d 124) (1985).

“ ‘Our responsibility on appeal is not to weigh the evidence and give a de novo opinion as to the weight of the evidence but merely to determine if there is sufficient evidence to authorize the trial court’s judgment’ when that evidence is ‘viewed in the light favorable to the verdict.’ [Cit.] The weight of the evidence and the credibility of the witnesses are questions for the factfinder. [Cits.] In making this determination, the factfinder may consider the relationship of the witnesses to the party involved and their feelings toward the party. [Cit.] Here, the factfinder apparently chose to believe the testimony of the [witnesses for the State], as was [its] prerogative. [Cit.] Although the wife denied the [stabbing], the factfinder may draw reasonable inferences from the evidence presented.” Patterson v. State, 181 Ga. App. 68 (2) (351 SE2d 503) (1986).

The evidence at trial was sufficient to permit a rational trier of fact to find appellant guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The basis for appellant’s motion for directed verdict on the charge of obstructing an officer was appellant’s contention that he was entitled to resist the officers because his arrest was illegal. We disagree with his assertion that the denial of his motion for directed verdict was error.

“An arrest for a crime may be made by a law enforcement officer . . . without a warrant... if the officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed or a criminal offense as set forth in paragraphs (1) and (2) of Code Section 19-13-1 has occurred between persons of the opposite sex dwelling together openly in a meretricious relationship. . . .” OCGA § 17-4-20 (a). The uncontradicted testimony of the police witness concerning the victim’s statement accusing appellant of stabbing her, the presence of a stab wound on the victim’s back, the presence of several weapons, and the disordered condition of the scene clearly established at trial that the officers had probable cause to believe that an act of family violence had occurred. Therefore, appellant’s arrest was not invalid for a lack of probable cause.

Appellant relies on Thompson v. State, 248 Ga. 343 (1) (285 SE2d 685) (1981), for the proposition that his warrantless arrest was illegal because it took place in his home without his consent. However, the Supreme Court held in that case that Thompson’s arrest was illegal “because it took place in his home without a warrant and without either exigent circumstances or his consent. [Cits.]” Id. (Emphasis supplied.) Since the evidence here clearly established exigent circumstances, appellant’s reliance on Thompson is misplaced. Similarly, Smith v. State, 84 Ga. App. 79 (65 SE2d 709) (1951), cited by appellant, is inapposite in that the warrantless arrest there was found to be illegal because there was no statutory authority for it; as we have shown above, appellant’s warrantless arrest was expressly authorized by statute.

Since the evidence of record authorized a rational trier of fact to find appellant guilty beyond a reasonable doubt of obstruction of an officer (Jackson v. Virginia, supra; Gay v. State, 179 Ga. App. 430 (2) (346 SE2d 877) (1986)), it was not error to deny appellant’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984).

Judgment affirmed. Deen, P. J., McMurray, P. J., Carley, Pope, and Beasley, JJ., concur.

Birdsong, C. J., Banke, P. J., and Sognier, J., concur in part and dissent in part.

Banke, Presiding Judge,

concurring in part and dissenting in part.

I concur fully with the affirmance of the appellant’s conviction of obstructing an officer, it being clear beyond dispute that the arresting officers had probable cause to believe the appellant had committed an aggravated assault against his wife. Indeed, based on the circumstances apparent at the scene, the officers were not merely authorized to arrest the appellant for aggravated assault, they would have been remiss had they not done so. See generally OCGA § 17-4-20 (a). I cannot agree, however, that the evidence presented at trial was sufficient to support a conviction of aggravated assault.

The appellant was convicted and sentenced to 20 years imprisonment for an offense which both he and his wife, the only witnesses to the incident, testified never occurred. The wife’s testimony at trial was to the effect that she pulled a gun on the appellant during the course of a domestic quarrel in their home; that the appellant struggled with her for possession of the weapon; that during the course of the struggle the two of them fell across a coffee table, knocking a pair of scissors to the floor; that as they continued to struggle, the appellant “got the scissors and put them in my back and tried to take the gun away from me”; and that after she put down the gun, he put down the scissors. Although the wife indicated that the scissors might have been responsible for the wound in her back, she expressed some uncertainty about this, stating that the wound might also have been caused by “some of the glass when I fell on the table. . . .”

Decided July 10, 1987

Rehearing dismissed July 23, 1987.

Shane M. Geeter, for appellant.

The majority chooses to disregard this testimony, characterizing it as a “recantation” of the witness’ earlier statement to police officers that the appellant had “stabbed” her with the scissors. It strikes me, however, that the wife’s trial testimony may more appropriately be characterized as an explanation or amplification of her earlier statement than as a “recantation” of it. In both versions, the wife maintained that she had been stabbed by the scissors or by some other object during the course of a domestic quarrel; but while her statement at the scene, standing alone, suggests that the appellant deliberately assaulted her with the scissors, her testimony at trial reveals that he in fact used the scissors defensively rather than offensively and that the stabbing may even have been accidental. Under such circumstances, the wife’s out-of-court statement constitutes a slender reed indeed upon which to base a felony conviction.

It has, of course, long been the rule in this state that the jury is obliged, where possible, to reconcile any apparent conflicts in the testimony so as to make each witness speak the truth. See, e.g., Stuckey v. State, 213 Ga. 525 (2) (100 SE2d 189) (1957); Cotton v. State, 81 Ga. App. 753, 755 (59 SE2d 741) (1950). Moreover, the sufficiency of the evidence in a criminal case may no longer be evaluated under the “any evidence” standard; rather, it must appear that the evidence as a whole was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). I do not believe that the evidence in this case, when viewed in its entirety, supports the appellant’s conviction and 20-year sentence for aggravated assault, and I would consequently reverse that portion of the judgment. This court’s decision in Patterson v. State, 181 Ga. App. 68 (351 SE2d 503) (1986), relied on by the majority, does not support the affirmance of the aggravated assault conviction in the present case, as the offense at issue there was witnessed not only by the victim but also by two deputy sheriffs.

I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this opinion.

Joseph H. Briley, District Attorney, for appellee.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74054.
    BRADFORD et al. v. GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA.
    (359 SE2d 757)
   Benham, Judge.

Appellee General Electric Credit Corporation of Georgia (GECC) filed suit against appellants James and Jerome Bradford, seeking a deficiency judgment. Appellee alleged that the Bradfords had executed a promissory note and chattel mortgage, giving GECC a security interest in various pieces of construction equipment which, when appellants defaulted on their obligation, GECC had taken possession of and sold, applying the proceeds to appellants’ indebtedness. A deficiency balance of $56,760.10 remained, for which appellee filed suit. A jury found in favor of GECC, and appellants’ sole enumeration of error on their appeal from the judgment entered is the denial of their motion for directed verdict.

Appellants contend that GECC is precluded from obtaining a deficiency judgment against them because GECC did not provide proper notice under OCGA § 11-9-506. That statute provides: “At any time before the secured party has disposed of collateral . . . the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral...” This court has held that a debtor must be notified that he may redeem his collateral at any time before its sale. See Credithrift of America &c. v. Smith, 168 Ga. App. 45 (308 SE2d 53) (1983). In the case at bar, GECC notified appellants that the repossessed collateral would be sold after 10 days had elapsed from the date of the letter; that appellant would be responsible for the account balance remaining after the sale; that appellants had the right to redeem the collateral upon payment in full of the account; and that such payment “must be remitted on or before [10 days from the date of the notice].” All of the repossessed collateral was sold well after the 10-day period set forth in each notice letter had elapsed. According to this court’s holding in Credithrift, supra, “[t]he debtor [s] had, as a matter of law, not been notified that [they] could redeem [their] collateral at any time before the sale. . . .” GECC suggests that the holding in Credithrift is applicable only where, as there, the notice letter contains the date of the sale and limits the right of redemption to a time up to the date of sale, but the sale takes place at a date later than that listed in the notice letter. We decline to adopt such a narrow interpretation of Credithrift, especially in the factual setting of the case at bar wherein the debtors were informed that payment to redeem the collateral had to be made on or before 10 days from the date of the letter. Based on Credithrift, we hold that when a debtor is not informed that he has a right to redeem the collateral at any time before its sale, OCGA § 11-9-506 is violated.

The remedy applied in Credithrift, the direction of a verdict in favor of the debtor, is, however, no longer available. In Emmons v. Burkett, 256 Ga. 855 (353 SE2d 908) (1987), the Georgia Supreme Court retreated from the “absolute bar” rule appellants espouse, which rule barred a creditor from recovering a deficiency judgment if it had failed to comply with the UCC notice requirements concerning the sale of repossessed collateral. In its place, the Supreme Court adopted the “rebuttable presumption” rule: “if a creditor fails to give notice or conducts an unreasonable sale, the presumption is raised that the value of the collateral is equal to the indebtedness. To overcome this presumption, the creditor must present evidence of the fair and reasonable value of the collateral and the evidence must show that such value was less than the debt. [Cit.] If the creditor rebuts the presumption, he may maintain an action against the debtor or guarantor for any deficiency. Any loss suffered by the debtor as a consequence of the failure to give notice or to conduct a commercially reasonable sale is recoverable under [OCGA] § 11-9-507 and may be set off against the deficiency.” Id. at 857.

The case at bar was tried in September 1985, at which time the “absolute bar” rule was in effect. In light of our holding that GECC’s notice letter was deficient under Credithrift, appellants were entitled to a directed verdict. However, on appeal, we must apply the law now in effect, the “rebuttable presumption” rule. Appellants argue that the Supreme Court holding in Emmons v. Burkett should not be applied to the case at bar since that was not the state of the law at the time the trial court entered its judgment. “On appeal we apply the law as it exists at the time of appeal rather than the law prevailing at the rendition of the judgment under review; we may reverse a judgment that was correct when rendered, where the law has been changed in the meantime and where no vested right will be impaired. [Cit.]” Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631 (295 SE2d 843) (1982). Prior to Emmons v. Burkett, case law imposed a penalty on creditors for noncompliance with OCGA § 11-9-504 (3). Inasmuch as there is no vested right in a penalty (Southern Discount Co. of Ga. v. Ector, 246 Ga. 30 (268 SE2d 621) (1980)), the law in effect at the time of appeal will be applied. We have reviewed the trial transcript and conclude that GECC overcame the presumption that the value of the repossessed collateral equaled the indebtedness by presenting evidence of the fair and reasonable value of the collateral through its presentation of appraisal testimony. GECC also showed that the value of the collateral was less than the outstanding indebtedness. The debtors, on the other hand, presented no evidence of the loss they may have suffered due to GECC’s insufficient notice of sale. OCGA § 11-9-507 (1) afforded appellants a “pre-rebuttable presumption rule” means by which they might recover any loss they sustained due to appellee’s insufficient notice. See Trust Co. of Columbus v. Kite, 164 Ga. App. 119, 121 (294 SE2d 606) (1982). Thus, while appellants had the opportunity to present evidence of any loss they may have sustained due to GECC’s insufficient notice of sale, they failed to avail themselves of that remedial avenue. Since appellants did not prove they were damaged by appellee’s insufficient notice, they were not entitled to a set-off against the deficiency proven by GECC to exist.

Decided July 23, 1987.

John W. Mrosek, Stephen H. Block, for appellants.

William E. Turnipseed, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge.

text:
    72962.
    BAINBRIDGE & ASSOCIATES, ARCHITECTS, P. A. v. JOHNSON et al.
    (360 SE2d 273)
   Pope, Judge.

Appellant filed this suit on December 17, 1980, alleging that ap-pellees Kevin Johnson and Cordia Middleton were indebted to it for professional services rendered. Responsive pleadings were filed by ap-pellees in January of 1981 denying the allegations of the complaint. The action lay dormant until November 12 and December 9, 1985, when the two appellees each filed a motion for summary judgment supported by their affidavits. Having received no timely response to these motions, the trial court on March 4, 1986 entered orders granting summary judgment to both appellees, from which this appeal was taken. Held:

Appellees have moved to dismiss this appeal pursuant to OCGA § 9-2-60 (b), which provides for automatic dismissal of “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years . . . with costs to be taxed against the party plaintiff.” “In order to satisfy the statute, an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk; . . . [T]he statute’s provisions are mandatory and dismissal is automatic and by operation of law. The statute places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the same is entered in the record. Neither the trial court nor this court has the discretion to reinstate this case.” (Citations, indention and punctuation omitted.) Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548 (1, 2) (309 SE2d 635) (1983). Accord Intl. Longshoremen’s Assn. &c. v. Saunders, 182 Ga. App. 301 (1) (355 SE2d 461) (1987); Beck v. Dean, 177 Ga. App. 144 (338 SE2d 693) (1985).

Decided July 10, 1987

Rehearing denied July 24, 1987

Robert H. Hishon, for appellant.

John A. Sherrill, Ronald W. Rogers, for appellees.

The record does not show that any written order of continuance, or of any other kind, was taken after the filing of the instant action on December 17, 1980 until the March 4, 1986 order granting summary judgment to appellees, a period of more than five years. “[A]fter automatic dismissal as required by the statute, the case is no longer pending, and any further action, even trial and verdict, is a mere nullity. ... It is ‘lifeless for all purposes.’ [Cit.]” Salter v. Chatham County, 136 Ga. App. 914, 915 (222 SE2d 638) (1975). The operation of OCGA § 9-2-60 (b) cannot be waived by a party litigant. Swint v. Smith, 219 Ga. 532 (3) (134 SE2d 595) (1964). Accordingly, appellees’ motion to dismiss this appeal must be granted. See Pierce v. Cessna Aircraft Co., 179 Ga. App. 549, 550 (347 SE2d 261) (1986).

Appeal dismissed.

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


author: Carley, Judge. Benham, Judge,

text:
    74095.
    BABB v. POTTS.
    (360 SE2d 44)
   Carley, Judge.

In 1978, J. D. Wilson died intestate. Appellee, who is Wilson’s sister, had provided a home for her brother from 1974 until his death. Appellee furnished Wilson the mobile home in her backyard as a place for him to live, paid his utilities, bought his food, cooked his meals, performed his household chores and provided him with nursing care. Appellee never received any payment from Wilson for rent or for the goods and services that she furnished to him. In 1977, appellant, who is Wilson’s only child, purchased her father’s house and signed a promissory note whereby she was to make payments of $200 a month to Wilson. Wilson’s house was apparently his only substantial asset and the $200 a month that he received from appellant was apparently his only source of income until shortly before his death. After Wilson’s death, appellant petitioned the probate court for an order that no administration of her father’s estate was necessary. See OCGA § 53-10-1. Appellee objected, asserting that she was a creditor to whom Wilson was indebted for 54 months of room and board at $500 per month. See OCGA § 53-10-2 (b). After appellee filed her objection, appellant’s petition for no administration was denied and she was appointed the administrix of her father’s estate.

Thereafter, this litigation was initiated when appellant, in both her individual and representative capacities, filed suit, alleging that appellee was “unlawfully holding” certain items of personal property which were owned by Wilson at the time of his death. Appellee answered and also filed a counterclaim against appellant, seeking to recover for Wilson’s room and board. Only appellee’s counterclaim came on for trial and it was submitted to the jury under two theories of recovery, breach of contract to make a will and quantum meruit. See Banks v. Howard, 117 Ga. 94, 96-97 (43 SE 438) (1902). The jury found for appellant on the contract theory, but for appellee on the quantum meruit theory. Appellant appeals from the judgment entered on the $20,000 verdict returned in favor of appellee.

1. The general grounds are enumerated. “[F]or a quantum me-ruit obligation to arise between siblings, there must be . . . ‘facts or circumstances which would authorize an inference that it was contemplated that the services would be paid for in order to recover for them.’ [Cit.]” Spain v. Stubbs, 156 Ga. App. 179, 181 (4) (274 SE2d 149) (1980). “In determining that in the contemplation of the parties such services [as nursing, personal care and the like] are to be paid for, the degree of relationship between the parties, the nature of the services, including the fact that their performance is very disagreeable and obnoxious to the person performing them, that they are such as to indicate the relation of master and servant, or employer and employee between the parties, and such that the person performing them would not naturally do so without compensation and would not perform them solely for love and affection, and statements made by the person to whom the services are rendered of appreciation of the services and an intention to pay therefor, although not necessarily communicated to the person rendering the services, and the fact that the person to whom the services are rendered is financially able to pay therefor, and other facts and circumstances concerning the performance of the services, may be considered as authorizing the inference that it is in the contemplation of the parties that the services are to be paid for. [Cit.]” Humphries v. Miller, 66 Ga. App. 871, 872 (1) (19 SE2d 321) (1942). “[I]t appears from the great weight of decisions in Georgia that, where the facts do not plainly demand an inference that the services were gratuitous, the particular facts of each case should be submitted to the jury under proper instructions as to the law as herein set forth. [Cits.]” Freeman v. Phillips, 135 Ga. App. 466, 468 (218 SE2d 144) (1975). The evidence in this case did not demand an inference that the services performed for Wilson by appel-lee were gratuitous. “There is ample testimony in the present case to authorize [the] inference [that appellee would be paid for her services to Wilson].” Spain v. Stubbs, supra at 181 (4).

Appellant further asserts that there is no competent evidence authorizing a verdict in the amount of $20,000. In suits on quantum me-ruit, “the plaintiff is entitled to recover the ordinary and reasonable charges usually made for such services by members of the same profession, of similar standing.” Marshall v. Bahnsen, 1 Ga. App. 485 (2) (57 SE 1006) (1907). “Questions of value are peculiarly for the determination of the jury where there is any data in evidence upon which they may legitimately exercise their ‘own knowledge and ideas.’ [Cit.]” Daniell & Beutell v. McRee, 31 Ga. App. 210, 211 (1) (120 SE 448) (1923). There was sufficient evidence as to the value of such services as appellee had rendered to Wilson. See generally Bailey v. Fox, 144 Ga. App. 195 (1) (240 SE2d 737) (1977); Mitchell & Pickering v. Louis Isaacson, Inc., 139 Ga. App. 733, 734 (1) (229 SE2d 535) (1976); Buffington v. McClelland, 130 Ga. App. 460, 464 (1) (203 SE2d 575) (1973); Kell v. Hunter, 84 Ga. App. 792, 795 (4) (67 SE2d 597) (1951). Under the circumstances, it was not error to enter judgment on the $20,000 verdict against appellant in her individual, as well as her representative, capacity. See generally OCGA §§ 53-7-95; 53-13-63.

2. Appellant propounded the following question during the cross-examination of appellee: “And you also consider anything that [Wilson] may do for you in a will had one existed to be a gift, isn’t that correct?” Appellant enumerates as error the trial court’s sustaining of appellee’s objection to this question.

It is clear that any response to the question would ultimately relate only to appellee’s theory that Wilson had breached an express contract to make a will. The inquiry is as to whether such an alleged contract would have been supported by consideration or whether any bequest in Wilson’s non-existent will would merely have represented a gift to appellee. The jury found for appellant on appellee’s contract theory, thereby establishing that Wilson had not contracted with ap-pellee to make a will. The unanswered question had no real relevancy to appellee’s quantum meruit theory upon which the jury did base its verdict. The relevant issue as to that theory was whether, notwithstanding the absence of an express contract to make a will, there was an implied inter vivos contract to pay for appellee’s services, which contract was now enforceable against Wilson’s estate. Since the question related only to the legal theory upon which the jury found for appellant in any event, the error, if any, in sustaining appellee’s objection thereto was harmless.

Decided July 9, 1987

Rehearing denied July 24, 1987

L. Eddie Benton, Jr., for appellant.

Jacquelyn H. Wilkes, Gregory M. Perry, for appellee.

Judgment affirmed.

Banke, P. J., concurs. Benham, J., concurs and also concurs specially.

Benham, Judge,

concurring specially.

I concur in the majority opinion, but I believe the holding in Division 1 fails to sufficiently limit the right of the creditor to hold appellant personally liable on debts of the estate. The majority states: “Under the circumstances, it was not error to enter judgment on the $20,000 verdict against appellant in her individual, as well as her representative, capacity. See generally OCGA §§ 53-7-95; 53-13-63.” The legatee of the estate is personally liable to creditors of the estate provided that the assets of the estate can be traced into her hands. “A creditor of an estate may follow assets in the hands of legatees or distributees even if they were received without notice.” OCGA § 53-13-63. The facts of this case do not indicate whether the assets of the estate have been distributed. If the estate has been distributed, appellant is personally liable to the creditor only to the extent that she has benefited from the estate. If the estate has not been distributed, the estate is solely liable for payment of its debts to creditors.


author: McMurray, Presiding Judge.

text:
    74117.
    MEDICAL ONCOLOGY HEMATOLOGY GROUP, P. C. v. GOLDKLANG.
    (360 SE2d 41)
   McMurray, Presiding Judge.

On August 1, 1979, Medical Oncology Hematology Group, P.C. (corporation) entered into an employment agreement with Gerald A. Goldklang, “a physician, licensed to practice medicine in the State of Georgia,” (defendant), whereby defendant was to perform medical services on behalf of the corporation. Defendant was associated with the corporation from August 1, 1979, until December 1, 1983. Thereafter, defendant “opened separate offices” and continued to practice medicine.

On January 17, 1984, the corporation filed a lawsuit against defendant alleging defendant breached the employment contract. The corporation further alleged that defendant engaged in tortious activities relating to his association and termination with the corporation. Defendant answered and denied the material allegations of the complaint. Subsequently, defendant filed a motion for partial summary judgment as to the corporation’s claims for breach of contract. In this regard, the trial court entered, in pertinent part, the following order: “A review of the documents filed by Defendant on March 27, 1986, in addition to the other evidence of record, clearly reveals that the ‘Employment Agreement’ between the parties terminated in August 1980 as provided in Paragraph 6 (b) of said Agreement. According to the [corporation’s] own records, it ceased paying any salary to Defendant in August 1980. Thereafter, [the corporation] characterized its payments to Defendant as ‘fees,’ ‘draw’ or payment for ‘professional services.’ In light of this evidence and the other evidence of record showing a disregard for the ‘Employment Agreement’ after August 1980, it is clear that no Agreement existed after August 1980 for the Defendant to breach. Thus, Defendant is entitled to judgment as a matter of law. This ruling makes it unnecessary to address Defendant’s remaining contentions. Accordingly, Judgment is hereby GRANTED in favor of the Defendant as to Counts II, III and IV of [the corporation’s] complaint.” The corporation now appeals. Held:

Decided July 8, 1987

Rehearing denied July 24, 1987.

Mitchell S. Rosen, for appellant.

In its sole enumeration of error, the corporation contends “[t]he trial court erred in finding as a matter of law that the employment agreement had been terminated.”

“ ‘Where the terms of the contract are plain and unambiguous, their construction is for the court rather than the jury.’ State Hwy. Dept. v. MacDougald Constr. Co., 102 Ga. App. 254, 255 (4) (155 SE2d 863). ‘The construction of a contract is a question of law for the court.’ Code § 20-701 [now OCGA § 13-2-1].” Gilreath v. Argo, 135 Ga. App. 849, 852 (5) (219 SE2d 461). In the case sub judice, it is undisputed that paragraph 6 (b) of the employment contract provided that the employment agreement would be terminated “[o]ne year from the date set forth in this Agreement [August 1, 1979].” Notwithstanding the corporation’s contrary assertions, we find this provision clear and unambiguous. Consequently, the trial court did not err in finding that defendant’s employment had terminated by the terms of the contract. See Trimier v. Atlanta Univ., 141 Ga. App. 546 (234 SE2d 342).

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Matthew H. Patton, Constance C. Russell, for appellee.


author: Beasley, Judge. Sognier, Judge,

text:
    74159.
    74160.
    74161.
    GUERNSEY PETROLEUM CORPORATION v. DATA GENERAL CORPORATION et al. COHEN v. GUERNSEY PETROLEUM CORPORATION. DATA GENERAL CORPORATION v. GUERNSEY PETROLEUM CORPORATION.
    (359 SE2d 920)
   Beasley, Judge.

These appeals arise out of a controversy which resulted when Guernsey Petroleum Corporation (a petroleum developer) entered into a contract with Interactive Systems Corporation (a computer software and hardware marketer) on July 13, 1982. The contract was executed by Cohen, president of ISC, and Freedman, president of Guernsey. In return for a stated consideration ISC agreed to supply Guernsey with a computer system, including hardware manufactured by Data General and software customized by ISC. The contract provided that time was of the essence and ISC guaranteed that the software programs would be ready and operable before January 1, 1983. According to Guernsey, ISC failed to complete their part of the agreement on time and had not completed performance some fifteen months after the due date so that Guernsey was forced to undertake completion of the contract at its own expense.

The litigation began when Data Concepts, Inc. d/b/a ISC filed suit against Guernsey contending Guernsey had breached the contract by failing to pay $4,000 of the purchase price and that ISC had performed extensive modifications and enhancement to the software programs valued at $25,000. The complaint also alleged Guernsey had interfered with ISC’s employment agreements with its employees and had cost ISC lost profits by failing to comply with the provision of the contract for marketing the software programs to other oil and gas companies.

Guernsey filed a separate action in Cobb County which was voluntarily dismissed when it was permitted to file an amended counterclaim to the action brought by ISC. Named as defendants in the counterclaim were Data Concepts and Interactive Consulting Systems, two corporations of which Cohen was president and which did business as ISC, Cohen individually, since he acted as purported president of ISC, a non-existent corporation, and Data General, the manufacturer of computer hardware provided to Guernsey under the contract. Recovery of damages was sought for breach of contract, breach of express and implied warranties, and fraud.

Data General joined in by filing an amended answer to the counterclaim which included a counterclaim against Guernsey for malicious abuse of process. By counterclaim Data General alleged that it was neither a party to the contract nor a party to the preliminary negotiations to the contract, and that Guernsey’s claim against it was a bad faith effort to force Data General to gratuitously provide it with goods and services.

After extensive discovery, various motions for summary judgment were filed by the parties. This culminated in an order which: 1) granted Cohen’s motion for summary judgment as to three counts of fraud (V, VI, and VII) alleged against him by Guernsey in its counterclaim; 2) granted Data General’s motion for summary judgment as to Guernsey’s counterclaim against it; 3) denied Cohen’s motion for summary judgment as to the allegations of Guernsey’s counterclaim which sought recovery against him individually; 4) granted Guernsey’s motion for summary judgment as to Data General’s counterclaim against it alleging malicious abuse of process. Numbers 1 and 2 are the subject of appeal 74159, and numbers 3 and 4 are the subjects of appeals 74160 and 74161 respectively. They are considered seriatim.

1. Case No. 74159 involves Guernsey’s complaint insofar as it seeks to recover for alleged fraud on the part of Cohen and Data General.

We consider first whether the trial court properly granted partial summary judgment to Cohen and dismissed those counts (V, VI and VII) which alleged he was guilty of fraud in the procurement of the contract entered into on July 13, 1982. “Where fraud in the inducement is alleged, the pleader has a choice between rescinding the contract or affirming it. If he rescinds he is not bound by any. of its provisions, but in order to rescind successfully he must return or offer to return the subject matter of the sale in order to place the seller in the same situation in which he was prior to the transaction. If he affirms and suffers damages he is entitled to recover those damages which he can prove, but he is bound by the contract, having elected to stand upon it.” (Emphasis original.) Garrett v. Diamond, 144 Ga. App. 428, 430 (2) (240 SE2d 912) (1977).

Guernsey has not offered to restore the items it received under the contract and has not rescinded it. Instead, it has chosen to affirm and seek damages under the contract. Condios, Inc. v. Driver, 145 Ga. App. 537 (1) (244 SE2d 85) (1978). Guernsey contends that it can affirm and still sue in tort for fraud. In so reasoning Guernsey misconstrues Garrett, supra.

By choosing to affirm, Guernsey eliminated fraud as a cause of complaint against Cohen. “[W]here the purchaser affirms a contract which contains a merger or disclaimer provision and retains the purchased articles, he is estopped from asserting that he relied upon the seller’s misrepresentation and his action for fraud must fail.” Roth v. Bill Heard Chevrolet, 166 Ga. App. 583 (305 SE2d 31) (1983). Having elected to affirm the contract Guernsey is bound by its provisions, including the merger provision, and cannot assert reliance on alleged false representations made prior to the contract’s execution. Kot v. Richard P. Rita Personnel, 134 Ga. App. 438 (214 SE2d 690) (1975); Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272, 273 (2) (306 SE2d 362) (1983).

No error appears from dismissing the counts charging Cohen with fraud.

2. In Case No. 74159 error is assigned to granting Data General’s motion for summary judgment. Guernsey asserts three bases for Data General’s liability to it: a) an agency relationship between Data General and Cohen; b) Data General’s actual or constructive fraud through concealment or statements made with reckless disregard for the truth; c) Data General’s duty both in tort and contract to Guernsey.

a) Under the circumstances here, could Data General and Cohen be considered partners or did the relationship of principal and agent arise so as to impose liability upon Data General on the contract?

The existence of agency may be proved by showing circumstances, apparent relations, and conduct of parties. Browning v. American &c. Travel Co., 163 Ga. App. 110 (294 SE2d 362) (1982). “It has long been the Georgia rule that one who is a party to the [alleged] relationship (the principal or agent) may testify as a fact as to the existence or non-existence of the relationship and that such testimony would not be subject to the objection that the statement was a conclusion or the ultimate fact.” Commercial Union Ins. Co. v. Taylor, 169 Ga. App. 177, 180 (312 SE2d 177) (1983). The denial of the existence of any agency relationship may thus constitute an un-contradicted fact which will sustain a motion for summary judgment. Where the other party attempts to controvert this fact by circumstantial evidence “it must be evidence sufficient to support a verdict.” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780 (257 SE2d 186) (1979). “The circumstantial evidence . . . must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions.” Cohen v. Hartlage, 179 Ga. App. 847, 850 (348 SE2d 331) (1986).

Tested by the applicable principles we find no evidence sufficient to establish that relationship. Both Cohen and Data General denied they operated either as a partnership or that there was a principal-agent relationship. Having no direct evidence as to agency the burden was upon Guernsey to introduce circumstantial evidence sufficient to carry the case to a jury.

It is axiomatic that neither an interest in the success of an enterprise, McCulley v. Dunson, 149 Ga. App. 551, 553 (1) (254 SE2d 877) (1979), nor a close relationship, Hinely v. Barrow, 169 Ga. App. 529, 531 (313 SE2d 739) (1984), establish an agency relationship. Although the term “partnership” regarding Cohen/ISC and Data General may have been used during negotiation, there is no evidence that Guernsey believed it was entering into an agreement with Data General. It is evident that Freedman, Guernsey’s executive officer, who made the decision to enter into the contract with Cohen/ISC, recognized that Cohen and Data General were separate entities and that Data General was in no way a party to the contract. It was perfectly clear to Guernsey that the contracting party was Cohen/ISC. At most the only function of Data General, as manufacturer of the end use product, was to stand behind Cohen. It should be noted that Guernsey does not rely on any manufacturer’s express or implied warranty or failure of the hardware as a ground for recovery from Data General.

b) The question as to whether certain statements made by Data General’s representatives at a presentation on April 21, 1982, amounted to fraudulent misrepresentations or concealment is more difficult to resolve. “[EJssential elements of an action for fraud are: ... (1) the defendant made the representation; (2) he knew the representation was false at the time; (3) he made it with the intention and purpose of deceiving the plaintiff; (4) the plaintiff reasonably relied upon the representation; (5) the plaintiff sustained the alleged loss and damage as a proximate result of the defendant’s representation.” Morrison v. Hayes, 176 Ga. App. 128 (335 SE2d 596) (1985). See City Dodge v. Gardner, 232 Ga. 766, 769 (208 SE2d 794) (1974).

In our view the crucial issue here is whether the chief executive officer of Guernsey was justified in relying on statements he contends misled him.

“ ‘[Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. And where the representation consists of general commendations or mere expressions of opinion, hope, expectation, and the like, and where it relates to matters which from their nature, situation, or time, can not be supposed to be within the knowledge or under the power of the party making the statement, the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.’ ” Rogers v. Sinclair Refining Co., 49 Ga. App. 72, 75 (174 SE 207) (1934). “Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events.” Riddle v. Driebe, 153 Ga. App. 276, 281 (265 SE2d 92) (1980). Expressions which amount to no more than mere sales “puffing” do not constitute legal fraud. Terhune v. Coker & Co., 107 Ga. 352, 354 (33 SE 394) (1899); Wilkinson v. Walker, 143 Ga. App. 838, 839 (1) (240 SE2d 210) (1977).

Basically the representations on which Guernsey asserts it relied are statements made at the sales presentation by Data General’s representatives that: Data General would “stand behind” and “support” Cohen if he were awarded the contract; Cohen was qualified and authorized to install Data General Business Basic Software and he was qualified and capable of writing custom software.

Without detailing the voluminous facts contained in this record, a brief recitation of pertinent facts available to Guernsey is appropriate. The computer system Guernsey intended to replace was based on NCR hardware. Cohen was an ex-NCR salesman and had dealt with Guernsey for about ten years. Cohen had been an original equipment manufacturer (distributor or supplier) for Data General only a comparatively short time. Prior to entering into the contract but after the sales presentation, Cohen was recommended by an investigator hired by Guernsey to evaluate Cohen’s proposal and compare it to that of NCR.

Guernsey was aware that Cohen did not have a good reputation among competing vendors, and from Cohen’s customers, it learned of problems with Cohen. On the same date as that of the contract Freedman wrote a complimentary letter to Cohen expressing reasons why he selected Cohen’s computer system, which letter contained no reference to reliance on Data General’s representations. By subsequent deposition Freedman repudiated the letter but recognized that it contained his beliefs at the time the letter was written.

Freedman was a seasoned businessman with equal knowledge and opportunity to ascertain the facts equal to that of Data General. The parties were acting at arm’s length to complete a business transaction. Although Data General may have had reason to doubt Cohen’s ability there is no showing that its knowledge was such as to make what were at most overly assertive business assurances into knowingly fraudulent misstatements. It would be an imposition of much higher standards than those normal for the marketplace to characterize as fraud Data General’s assertions that Cohen was very competent and capable of performing, when it is basically no more than hindsight to now ascertain that he may not have been.

While some of the statements might have been inaccurate, they were not of such nature as to obviously mislead or justify the reliance of anyone other than a novice to business transactions. Charter Med. &c. Co. v. Ware Manor, 159 Ga. App. 378 (283 SE2d 330) (1981); Marler v. Dancing Water Lakes, 167 Ga. App. 99 (1) (305 SE2d 876) (1983). Further, there is no evidence that Data General was privy to the knowledge that Cohen did not intend to and could not perform satisfactorily.

Under these circumstances, the allegations of fraud cannot be. sustained.

c) Guernsey sought to impose liability upon Data General based upon the theory of negligent misrepresentation as described in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503) (1983). Since that case approved the Restatement of Torts 2d, § 552 (1977) which sets forth essentially the same five elements to recover as are required for fraud, we find that Guernsey failed to show that it was justified in relying upon the alleged negligent misstatements attributed to Data General.

The trial court did not err in granting Data General’s motion for summary judgment as to Guernsey’s counterclaim.

3. Case No. 74160 involves the denial of Cohen’s motion regarding Guernsey’s counterclaim. Cohen contends he could not be sued in his individual capacity. He argues that he was acting solely as president of ISC and that Guernsey was dealing solely with ISC and is thereby estopped to deny its corporate existence. See OCGA § 14-5-4; Cahoon v. Ward, 231 Ga. 872, 874 (204 SE2d 622) (1974).

In Don Swann Sales Corp. v. Echols, 160 Ga. App. 539, 541 (287 SE2d 577) (1981), this court considered “whether an individual purporting to act for a non-existent corporation can escape liability on a contract by defending on the basis of the non-existent corporation.” The doctrine of corporation by estoppel was found not to apply. Accord Echols v. Vienna Sausage Mfg. Co., 162 Ga. App. 158, 159 (2) (290 SE2d 484) (1982).

Cohen asserts that ISC was the name under which Data Concepts, Inc., did business. Therefore, there was a corporation in existence, although with a different name, which means that corporation by estoppel would be applicable. Goodwyne v. Moore, 170 Ga. App. 305, 306 (1) (316 SE2d 601) (1984). What this argument overlooks is that ISC was registered as trade name for Cohen and his sister, J. C. Estner. As such ISC could be a non-existent corporation and would come under the ruling in Don Swann, supra, and Echols, supra. The trial court properly declined to remove this issue from the jury’s consideration.

4. Case No. 74161 concerns the trial judge’s dismissal of Data General’s counterclaim which sought recovery against Guernsey for malicious abuse of process.

We are immediately faced with the question of the applicability of Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), decided June 25, 1986. Here the order in question was entered May 27, 1986 and notice of appeal filed June 25, 1986. In several cases we have applied Yost without discussion as to its retroactive aspects. See Williams v. Patel, 179 Ga. App. 570 (347 SE2d 337) (1986); Smith v. Pierce, 179 Ga. App. 724 (347 SE2d 692) (1986); Young v. Bank of Quitman, 180 Ga. App. 491, 492 (1) (349 SE2d 510) (1986); Howell v. Bank of Fitzgerald, 181 Ga. App. 57, 59 (1) (351 SE2d 258) (1986); Rothstein v. L. F. Still & Co., 181 Ga. App. 113, 116 (2) (351 SE2d 513) (1986).

It is a well established principle that “a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the prior law.” City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759) (1944). Accord Long v. Bruner, 171 Ga. App. 124, 126 (2) (318 SE2d 818) (1984); Osteen v. Osteen, 244 Ga. 445 (260 SE2d 321) (1979). Therefore, in testing whether Data General asserted a valid counterclaim against Guernsey we apply the precepts of Yost.

In our determination we observe the caveat of Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), a malicious prosecution case. The court warned of the danger inherent in favoring suits brought for malicious prosecution. The result would tend to seriously hamper the public policy of encouraging citizens to report crimes and bring apparently guilty individuals to justice. By the same token, zealous favoring of abusive litigation allegations can create a bar to access to the courts for civil litigants.

A Yost claim arises under these definitive circumstances: “Any party who shall assert a claim, defense, or other position with respect to which there exists such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the asserted claim, defense, or other position; or any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.” Yost, supra at 96.

Guernsey’s allegations and the proof offered in substantiation of its claim of fraud can in no sense be categorized as being completely devoid of any justifiable issue of law or fact. The issues were hardly clearcut and posed a serious question both for the trial court and this court. Guernsey’s claim cannot be considered as lacking substantial justification or as being interposed for delay or harassment.

Although Yost contemplates bifurcation and postponing a decision on the issue until after the main trial, where the issue can be determined as a matter of law summary judgment is an appropriate remedy. We need not delay a final adjudication of this matter because as a matter of law it reasonably could be believed that a court would accept the asserted claim. That being true, summary judgment was properly granted in Guernsey’s favor. See Howell, supra, and Rothstein, supra.

Decided July 9, 1987

Rehearing denied July 24, 1987

Stephen M. Forte, for Guernsey Petroleum.

Frank W. Virgin, for Data General.

Judgments affirmed.

McMurray, P. J., concurs in Divisions 1, 2, and 3, and in the judgment. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur with all divisions of this opinion except Division 4 with which I concur in judgment only. Although I agree the trial court properly granted summary judgment in favor of Guernsey Petroleum Corporation on the claim for malicious abuse of process made by Data General, I do not agree with the majority that Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) is applicable here. In response to interrogatories, Data General stated that it sought recovery only of damages for attorney fees and the cost of litigation on its malicious abuse of process claim. As noted by the Supreme Court in Yost, “[Recently enacted House Bill No. 1146, Ga. L. 1986, p. 1591 (to be known as OCGA § 9-15-14), provides for the award of attorney fees and expenses of litigation for specified abusive conduct. The new statute will, of course, govern these two elements of damages. That, however, in no way resolves the problems which we have outlined relative to other elements of recovery, specifically: special damages other than attorney fees and expenses of litigation . . . .” Yost, supra at 95 (9) and (10). Thus, Yost explicitly exempts from its purview the sole damages sought by Data General in its claim. Yost is therefore not applicable here and it is not necessary for us to address the possible retroactive effect of Yost.

Likewise, we need not here determine whether OCGA § 9-15-14, which became effective July 1, 1986, is retroactively applicable. Under the facts in this case as set forth in the majority, Data General failed to establish a claim to entitle it to attorney fees and expenses of litigation, and the trial court properly so ruled regardless whether that ruling is considered under the case law in effect prior to the effective date of OCGA § 9-15-14 or under the provisions of the statute which authorize the court (judge) to make such a determination. Accordingly, I concur with the majority’s affirmance of the trial court’s decision, but only on the basis outlined above.

David D. Blum, for Cohen.


text:
    74279.
    DEPARTMENT OF TRANSPORTATION v. JAMES COMPANY, INC.
    (360 SE2d 56)
   McMurray, Presiding Judge.

The Department of Transportation (condemnor) filed a proceeding in rem, seeking to condemn land owned by The James Company, Inc. (condemnee) for the construction of a limited access highway along U. S. Highway 84 between Waycross, Georgia and Brunswick, Georgia. From an assessor’s award of $12,580, condemnee appealed demanding a trial by jury as to the value of the property taken.

The evidence adduced at trial disclosed the following: In “early 1956” condemnee began operating a perpetual care garden type cemetery known as Greenlawn Cemetery located about five miles east of Waycross, Georgia on the south side of U. S. Highway 84. Con-demnee acquired the first parcel of real property for the cemetery in 1955 and by 1961 condemnee had acquired additional contiguous land, comprising 155.9 (155) acres.

On January 1, 1961, condemnee recorded in the Superior Court of Ware County, Georgia a document entitled: “A DEDICATION IN TRUST THE LANDS OF GREENLAWN CEMETERY.” This document describes condemnee’s entire 155-acre tract and provides as follows: “In response to the trust placed in us by our lot owners, and to comply with laws requiring dedication of cemetery property, we hereby dedicate the lands listed here as cemetery property and for no use except for the cemetery.”

Upon the date of condemnation, “12 to 14 acres” of condemnee’s 155-acre tract had been developed and were available for interment. Of this area, approximately “3.8 acres” had been sold and comprised 3,821 burial spaces. Eleven to twelve acres of condemnee’s property were open pasture which remained undeveloped and is used as a “buffer zone [to enhance] the appearance of the developed area.” More specifically, this area “had not been designed or planned, it hadn’t been cleared, it hadn’t been grubbed, [it] hadn’t been drained, roads hadn’t been built... no irrigation [system had been installed, and] no grass had been planted . . .” Condemnee’s remaining property consisted of about “128 acres” and included the land expropriated by condemnor. This area had not been platted as burial ground, it remained undeveloped and it was described as “woodlands.” (Portions of this area had been planted by condemnee with pine trees 15 to 18 years earlier and some of the pine trees had been removed from the property and sold.)

Condemnor’s acquisition comprised 6.508 acres of land which measured 4,902.5 feet along the south side of U. S. Highway 84 and varied in width from 36 to 90 feet. (1.1 acres of this land was a drainage area and was not suitable for cemetery purposes.) After con-demnor’s acquisition, condemnee’s road frontage was substantially the same as before the acquisition and approximately 149 acres of condemnee’s tract remained for future development.

The expert real estate appraisers for the parties were not in agreement as to the highest and best use of the condemned property. James Wigley testified for condemnor and concluded that the highest and best use for the condemned property was for the production of timber and he appraised the land for $4,172. Ralph Kirkpatrick, James Bailey and Tyson McClain testified for condemnee and appraised the condemned land for use as cemetery property. Kirkpatrick and Bailey appraised the land for $817,866. McClain appraised the land for $3 million.

Upon conclusion of the evidence, condemnor moved for a directed verdict. This motion was denied and the jury returned a verdict awarding condemnee $97,620. Condemnor now appeals. Held:

1. In support of its first three enumerations of error, condemnor argues that the testimony of condemnee’s expert witnesses was speculative and did not relate to the value of the condemned land at the time of condemnation. From this argument, condemnor contends the trial court erred in failing to grant its motion for directed verdict and in failing to enter judgment based on James Wigley’s valuation of the condemned property.

(a) First, we must determine whether the trial court erred in allowing the jury to consider the testimony of condemnee’s expert witnesses regarding their valuation of the condemned property.

After a thorough examination of the testimony of condemnee’s expert witnesses, it appears they adopted a theory of appraisal which views cemetery land as business capital which is in the form of fungible inventory. From this perspective, Kirkpatrick and Bailey appraised the condemned land by multiplying the sales price of a cemetery lot at Greenlawn Cemetery at the time of condemnation by the number of gravesites available in the condemned parcel of land. They then deducted the costs for developing the land for cemetery purposes and arrived at a sum which reflected the value they placed on the condemned land. McClain’s explanation of appraisal is more confusing. However, after examining his testimony, it appears McClain appraised the condemned land by applying á formula which is similar to the formula employed by Kirkpatrick and Bailey, modified to include anticipated revenues derived from the sale of items and services which are incidental to the procurement of a gravesite and are generally purchased by a cemetery customer.

Although we find no cases in Georgia addressing the propriety of the appraisal theory upon which condemnee’s expert witnesses based their formula for determining the value of the condemned land, other jurisdictions have confronted this appraisal theory and have approved “the so-called ‘capitalization or St. Agnes formula’ [for determining the value of unused cemetery land], under which the net sales price of lots already sold in the affected cemetery area, and in the adjoining cemetery sections, is applied to the number of lots taken.” 42 ALR3d 1314, 1317 § 2 (a), 1318. See St. Agnes Cemetery v. State of N. Y., 3 NY2d 37 (143 NE2d 377). See formula applied in State Hwy. Dept. v. Baxter, 111 Ga. App. 230, 232 (141 SE2d 236). A refined version of this formula is known as the “income method” of valuing cemetery property and has been defined as follows:

“The income method of valuing property having a highest and best use for cemetery purposes considers the property as an inventory of fungible gravesites, the supply of which diminishes over a period of years as the land is used and the inventory is exhausted by sales. The value of the gravesites is computed by finding the net annual sales after deducting the cost of improvements and projecting this sum over the life of the cemetery. The result is capitalized and then discounted, much as an annuity, to give it a present value reflecting the fact that the judgment against the state awards claimant dollars in hand in exchange for dollars expected from sales anticipated in the future (cf. also 4 Nichols on Eminent Domain (3d ed.), § 12.32 (4) (a) (i); Annot. Condemnation-Cemetery Lands, 42 A.L.R.3d 1314). In the case of a partial taking, the capitalized present worth of the cemetery is measured by this formula before and after taking to determine claimant’s damages (Diocese of Buffalo v. State of New York, 24 N.Y.2d 320, 300 N.Y.S.2d 328, 248 N.E.2d 155). The theory is that partial appropriation of cemetery land merely removes the number of graves available for sale at some future time, shortening the cemetery’s economic life.” St. James Roman Catholic &c. Society v. State of N. Y., 50 AD2d 193 (376 NYS2d 347, 350-351).

The “income method” for valuing cemetery property reflects a view which characterizes unused cemetery land as inventory with a future market and accordingly discounts its capital value in order to reflect the present value for condemned cemetery property. In comparison, the formulas applied by condemnee’s expert witnesses in the case sub judice do not reflect the actual “cash-in-hand” value of the condemned property because a discount rate is not provided therein which is based on the projected rate of capital recapture. This omission resulted in use of appraisal formulas by condemnee’s expert witnesses which valued the condemned land as inventory with an immediate market. This position is entirely unrealistic since the large amount of land available in condemnee’s cemetery translates into an extremely large inventory of gravesites; which, when combined with the historically slow rate of sales at Greenlawn Cemetery, results in a practically endless supply of grave lots for the local market. (Con-demnor’s expert witness testified that condemnee’s cemetery had a potential for 155,900 gravesites and, after applying a projected rate for sales which exceeded condemnee’s past yearly sales rate, he estimated the life of Greenlawn Cemetery at 760 years.) From this analysis, it is apparent that the conclusions of condemnee’s expert witnesses were speculative and did not accurately reflect the value of the condemned property at the time of condemnation. Consequently, the trial court erred in allowing the jury to consider the testimony of con-demnee’s expert witnesses regarding their appraisal of the condemned land.

(b) Next, we must determine whether the trial court erred in failing to enter judgment based on the appraisal of James Wigley, condemnor’s expert witness.

James Wigley testified that he appraised the condemned property as timberland, a use which resulted in a low valuation, because it was dedicated as cemetery property and could not be developed for what he testified was the highest and best use for the land, “rural residential.” Wigley further testified that use of the condemned land for cemetery purposes was not its highest and best use because the large volume of gravesites available at Greenlawn Cemetery combined with the projected slow rate of sales resulted in an appraisal for the condemned land which was less than his appraisal of the land based on its use for the production of timber.

In Buffalo Burial Park Assn. v. State of N. Y., 24 NY2d 320, 328-329 (248 NE2d 155), the Court of Appeals of New York was confronted with a similar problem as it related to undeveloped cemetery land and it held that the value of the land should be determined on the basis of a highest and best use for other than cemetery purposes. Adopting this approach in the case sub judice, since condemnor’s expert witness testified that the condemned land would appraise at a higher value for use other than cemetery purposes, the trial court did not err in failing to enter judgment in favor of condemnor based on Wigley’s valuation of the land for the production of timber. On the contrary, under the circumstances described by condemnor’s expert witness, condemnee should be allowed, as a minimum, to recover the fair market value of the condemned land based on its highest and best use for other than cemetery purposes. See St. James Roman Catholic &c. Society v. State of N. Y., 50 AD2d 193 (376 NYS2d 347, 352, 353), supra. Consequently, in the case sub judice, since neither condemnor nor condemnee presented competent evidence regarding the value of the condemned land for such “other” use, a new trial is required to determine condemnee’s just compensation.

Decided July 13, 1987

Rehearing denied July 24, 1987.

J. Thomas Whelchel, for appellant.

C. Edwin Rozier, for appellee.

2. In light of our holding in Division 1 of this opinion, the issues raised by condemnor in its remaining three enumerations of error have either been resolved, are rendered moot or are unlikely to reoccur upon retrial.

Judgment reversed.

Sognier and Beasley, JJ., concur.

       “ ‘Perpetual care’ means the maintenance and the reasonable administration of the cemetery grounds and buildings in keeping with a properly maintained cemetery.” OCGA § 44-3-131 (13).

       In conjunction with this dedication condemnee recorded a “TRUST AGREEMENT,” which was executed by condemnee on February 4, 1956. This agreement provides an irrevocable trust which is funded by 10 percent of the gross proceeds from the sale of each cemetery lot or grave space. The income of this endowment is to be used for the perpetual care of the cemetery. In this regard, the Georgia Cemetery Act of 1983, OCGA § 44-3-130 et seq., now provides guidelines for establishing such trust funds for perpetual care cemeteries.

       The combined testimony of the parties’ expert witnesses revealed that one acre of con-demnee’s land would yield from 850 to 1,500 gravesites. At the time condemnee’s property was taken by condemnor, the purchase price of one grave lot, if purchased before it was needed, was $250. If a grave lot was purchased for immediate use, the purchase price was $300. (The purchase price of a grave lot at condemnee’s cemetery was below the purchase price of a grave lot at similarly situated cemeteries in the region.)


author: Carley, Judge.

text:
    74283.
    CRUMBLEY et al. v. WYANT et al.
    (360 SE2d 276)
   Carley, Judge.

The issue presented for resolution in this case is one of appellate jurisdiction. That issue arises from the following set of facts: Appellant-plaintiffs brought a wrongful death action against appellee-de-fendants. The case was submitted to a jury and a verdict in favor of both appellees was returned. Appellants filed a timely motion for new trial as to both appellees. The trial court denied appellants’ motion for new trial as to appellee Dr. Wyant but, with regard to appellee Cobb County Kennestone Hospital Authority (Kennestone), the trial court granted appellants’ motion. The grant of a new trial as to appel-lee Kennestone was based solely on the giving of a jury charge which had been raised as a special ground of appellants’ motion. The denial of appellants’ motion for new trial as to appellee Dr. Wyant was not certified as “final” pursuant to OCGA § 9-11-54 (b) but, pursuant to OCGA § 5-6-34 (b), the order granting appellants a new trial as to appellee Kennestone was certified for immediate review by the trial court. Appellee Kennestone’s application to this court for an interlocutory appeal was granted. On the resulting appeal, this court reversed, holding that the giving of the jury charge did not constitute reversible error requiring the grant of a new trial to appellants as against appellee Kennestone. See Cobb County &c. Auth. v. Crumbley, 179 Ga. App. 896 (348 SE2d 49) (1986). Appellants applied to the Supreme Court for a writ of certiorari, but that application was denied.

After their application for writ of certiorari had been denied, appellants then filed their notice of appeal in the trial court. In their notice, appellants stated that they were appealing from the judgment which had been entered by the trial court on the jury verdict in favor of both appellees. Appellants’ notice of appeal further stated that the denial of their motion for new trial as to both appellees had not become “final” so as to render the underlying judgment in favor of ap-pellees an appealable order until such time as the Supreme Court had denied their application to review the holding in Cobb County &c. Auth. v. Crumbley, supra. In the trial court, appellees filed a motion to dismiss appellants’ notice of appeal as untimely. In their motion to dismiss, appellees urged that the applicable 30-day period within which appellants were authorized to file such a notice of appeal had commenced to run on the day that the trial court had entered its order on appellants’ motion for new trial. The trial court granted appel-lees’ motion to dismiss. See generally Jones v. Singleton, 253 Ga. 41 (1) (316 SE2d 154) (1984); Atwell v. Lane Co., 182 Ga. App. 813 (1) (357 SE2d 142) (1987). Appellants bring this appeal from the order of the trial court which dismissed their notice of appeal as untimely.

A discussion of the issue of this court’s jurisdiction over appellants’ appeal must begin with the entry of the judgment on the jury’s verdict in favor of both appellees. “Appeals may be taken to the Supreme Court and the Court of Appeals from . . . [a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided [for discretionary appeals].” OCGA § 5-6-34 (a) (1). “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-38 (a). Thus, the judgment entered on the jury verdict in favor of both ap-pellees was clearly a final, appealable judgment, and appellants had 30 days from the date of entry of that judgment within which to file a notice of appeal therefrom. Appellants did not do so, but instead elected to file a motion for new trial as to both appellees. “The effect of appellants’ election in this regard was to suspend the appealability of the judgment entered on the jury’s verdict pending final disposition of their motion for new trial. . . . The effect of the subsequent granting of appellants’ motion for new trial as to [appellee Kennes-tone] was ‘to recall and annul the verdict upon which the judgment [for it was] based in order that there [might] be a new trial [as to it] of the issues. . . .” [Cit.] Thus, appellants’ motion for new trial having been granted as to [appellee Kennestone], appellants’ suit as against [it stood] ‘ “on the docket for trial at the next term as though no trial had been had. . . .” [Cit.]’ [Cit.]” Chadwick v. Miller, 165 Ga. App. 20, 21 (299 SE2d 93) (1983).

The grant of appellants’ motion for new trial was clearly not a final order in the case so as to be directly appealable by appellee Kennestone. See generally Gordon v. Gordon, 236 Ga. 99 (222 SE2d 380) (1976). Moreover, neither the underlying judgment in favor of appel-lee Dr. Wyant nor the denial of the motion for new trial as to him was a final order in the case so as to be directly appealable by appellants. “[T]he order entered on appellants’ motion for new trial [was] an adjudication of ‘fewer than all the claims or the rights and liabilities of fewer than all the parties . . .’ [OCGA § 9-11-54 (b)]. This is true because the . . . procedural posture of [this] multiple-party case after the order on that motion was entered [was] that appellants’ suit [was] still pending in the trial court below as against one defendant, [appel-lee Kennestone]. Accordingly, the denial of appellants’ motion for new trial as to [appellee Dr. Wyant] — which would otherwise terminate the appellants’ action against [him] and pursuant to [OCGA § 5-6-38 (a)] supply the necessary prerequisite of ‘finality’ to the appeala-bility of the judgment entered in [his] favor — did not, in the absence of the trial court’s ‘express determination’ and ‘express direction’ with regard to finality, ‘terminate the action as to any of the . . . parties, and the order . . . [was] subject to revision at any time before the entry of judgment adjudicating . . . the rights and liabilities of all the parties.’ From the fact that the order denying the motion for new trial as to [appellee Dr. Wyant] did not terminate the action as to [him] and [was] subject to revision at any time before the entry of judgment adjudicating appellants’ claims against [appellee Kennestone] it follows that the judgment in favor of [both] appellees entered on [the jury’s verdict, was] itself not a final judgment. . . .” Chadwick v. Miller, supra at 21-22. Accordingly, both the order granting appellants a new trial as to appellee Kennestone and the order denying their motion for a new trial as to appellee Dr. Wyant were non-final and interlocutory orders and, as such, did not “otherwise finally [dispose] of [appellants’] motion” for new trial so as to render the underlying judgment in favor of both appellees final and directly appealable by them.

Nothing in this analysis is inconsistent with Munday v. Brissette, 113 Ga. App. 147 (2) (148 SE2d 55) (1966), rev’d on other grounds, 222 Ga. 162 (149 SE2d 110) (1966). Clearly, the denial of a motion for a new trial is itself a final, appealable order and, in addition, will serve to terminate the suspension as to the direct appealability of the underlying judgment, “[u]nless there is some additional factor which changes the definition of a final judgment. . . .” Munday v. Brissette, supra at 151 (2b). The enactment of OCGA § 9-11-54 subsequent to the decision in Munday v. Brissette, supra, constitutes an “additional factor which change [d] the definition of a final judgment” in those cases involving multiple claims or multiple parties. Pursuant to OCGA § 5-6-34 (a) (1), all “final judgments” — except those deemed to be discretionary pursuant to OCGA § 5-6-35 — are made directly appealable and, pursuant to OCGA § 9-11-54 (b), a definition of “finality” is established for those cases which involve multiple claims or multiple parties. It has long been recognized that OCGA § 9-11-54 (b) defines and controls “finality” for the purposes of determining ap-pealability in actions involving multiple claims or multiple parties. Chadwick v. Miller, supra, was merely the first case in which this court was presented with an occasion for application of OCGA § 9-11-54 (b) in the context of the denial of a motion for new trial as to fewer than all those parties in a multiple party case against whom a new trial had actually been sought. Compare A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827, 828 (1) (209 SE2d 272) (1974) (involving an appeal wherein a motion for new trial had been denied as to all parties in a multiple-party action against whom a new trial had been sought); Guthrie v. Boose, 134 Ga. App. 282, 284 (3) (213 SE2d 924) (1975) (wherein no appeal or motion for new trial had ever been filed as to all the parties in a multiple-party action). There is no basis for reliance upon Burnett v. American Mut. &c. Ins. Co., 147 Ga. App. 269 (1) (248 SE2d 510) (1978) as authority for the proposition that Chadwick v. Miller, supra, misconstrued and misapplied OCGA § 9-11-54 (b). The Burnett decision was itself subsequently vacated and, consequently, is authority for no proposition whatsoever. See Burnett v. American Mut. &c. Ins. Co., 149 Ga. App. 217 (254 SE2d 159) (1979). It is thus clear that, in the absence of an express determination and express direction pursuant to OCGA § 9-11-54 (b), the denial of a motion for a new trial as to fewer than all the parties against whom a new trial has actually been sought is not itself a final judgment, does not otherwise terminate the action even as to those in whose favor judgment has previously been entered, and is subject to revision at any time prior to the entry of a judgment as to all parties. Accordingly, the denial of a motion for new trial as to fewer than all the parties against whom a new trial has actually been sought is not an order “otherwise finally disposing of the motion” so as to trigger the 30-day period established by OCGA § 5-6-38 (a) for the filing of a notice of appeal, unless and until there has been compliance with OCGA § 9-11-54 (b).

The non-final and interlocutory order granting appellants a new trial as to appellee Kennestone was certified for immediate review. The non-final and interlocutory order denying a new trial as to appel-lee Dr. Wyant was not certified by the trial court so as to authorize appellants to seek an immediate review thereof pursuant to OCGA § 5-6-34 (b), and there was no certification of that order as final pursuant to OCGA § 9-11-54 (b). Appellee Kennestone sought and secured permission to file an interlocutory appeal from the order granting appellants a new trial as to it. It is possible that upon appellee Kennes-tone’s filing of its notice of appeal pursuant to this court’s grant of its application seeking a review of the trial court’s order granting a new trial as to it, appellants may have been authorized to file a cross-appeal, enumerating as error the trial court’s failure to find merit in the remaining grounds of their motion for new trial as to appellee Ken-nestone. However, we know of no authority holding that appellants would be required to file such a cross-appeal. Appellants themselves would not be required to appeal from the actual rulings on their motion for new trial, but were authorized to appeal from the underlying judgment in favor of both appellees, if and when that judgment ever became final. In other words, appellants would be entitled to appeal from the underlying judgment if and when their motion for new trial as against both appellees was “otherwise finally disposed] of. . . .” OCGA § 5-6-38 (a). We know of no reason why, rather than being required to file a cross appeal, appellants were not simply authorized to await resolution of appellee Kennestone’s interlocutory appeal, so as to assess what effect that resolution might ultimately have on their own right to appeal the underlying judgment entered on the jury’s verdict for both appellees.

As the result of this court’s reversal of the grant of a new trial as to appellee Kennestone, appellants’ motion for new trial had finally been denied as to both appellees. This court’s order did not itself become final until appellants’ application for a writ of certiorari was denied by our Supreme Court. Accordingly, it was not until the Supreme Court had acted that there was a final concurrence of a judgment in favor of both appellees and a denial of appellants’ motion for a new trial as against both appellees. Thus, it was only then that the case could be said to no longer be pending in the court below as against either appellee in this multiple-party action and that the suspension to the direct appealability by appellants of the underlying judgment had finally been removed. At that time, the 30-day period established by OCGA § 5-6-38 (a) for appealing from the underlying judgment entered in favor of both appellees was triggered. Appellants filed a notice of appeal within the applicable time period. It follows, therefore, that the trial court erred in granting appellees’ motion to dismiss appellants’ appeal as untimely.

Decided July 13, 1987

Rehearings denied July 24, 1987

Robert E. Shields, Michael A. Young, for appellants.

Thomas J. Casurella, Robert H. Cleveland, Y. Kevin Williams, for appellees.

Judgment reversed.

Banke, P. J., and Benham, J., concur.


text:
    73936.
    TABOR v. ORKIN EXTERMINATING COMPANY, INC.
    (360 SE2d 34)
   Pope, Judge.

This case arises out of a termite inspection. Plaintiff Tabor entered into a contract to purchase a house which required the sellers to furnish a termite inspection report. An initial report prepared by defendant Orkin Exterminating Company, Inc., was untimely by the date of closing on the contract, was not relied upon and is therefore irrelevant to plaintiff’s appeal. A report dated March 22, 1985 indicated previous infestation of termites and wood decay resulting in damage. A diagram of the house was attached to the report showing termite and moisture damage only in one area of the house. As a result of this report, plaintiff required the sellers to repair the damage identified in defendant’s report. After certain repairs had been made, defendant issued a second report again indicating previous infestation and damage from termites and wood decay. No diagram was attached to the second report. A handwritten remark on the form indicated “[s] light moisture & termite damage cosmetic, does not appear to be structural.” Nevertheless, the printed form stated as follows: “If damage has been noted it is not intended to be a statement as to the degree of damage present (see condition 7 on back). The damage . . . will not be corrected by this company. It is recommended that a qualified building expert evaluate the damage and make any needed repairs.” Condition 7, printed on the back of the form, stated: “If visible damage is reported, it does not imply that damage should be repaired or replaced. Evaluation of damage and any corrective action should be performed by a qualified building expert.”

After the second report was issued, plaintiff closed on the contract for sale on March 29, 1985. In May 1985, during the course of making certain repairs and renovations to the house, plaintiff discovered extensive wood rot and termite damage at the rear of the house when plaintiffs building contractor removed trim and molding which had been nailed over the frame and threshold of floor-to-ceiling windows and sliding doors. Plaintiff brought this action for negligent inspection, fraud and breach of the treatment contract issued by defendant on plaintiff’s house. Plaintiff appeals from the grant of summary judgment to defendant.

Plaintiff may not recover the cost of damages or repairs under his contract claim. The limited guarantee issued by defendant expressly excluded any coverage for infestation or damage from termites. In regard to wood decay fungus, the guarantee provided only for re-treatment and expressly released defendant from liability for damages or repairs.

Nor may plaintiff recover damages for that area of the house identified on the diagram in defendant’s first inspection report. This report was sufficient to alert plaintiff of a termite or wood rot problem in the identified area. See Butler v. Terminix Intl., 175 Ga. App. 816 (1) (334 SE2d 865) (1985). Even though the second report, issued after the sellers had made certain repairs, contained the opinion that the remaining damage did not appear to be structural, the report also included the express condition that “it [was] not intended to be a statement as to the degree of damage present. . . .’’In fact, the report recommended evaluation of damage by a qualified building expert. We reject plaintiff’s argument that defendant’s failure to attach a diagram to the second report implies there was no remaining damage. The report expressly noted remaining damage. Moreover, plaintiff had notice of the previous report prepared only days earlier identifying the location of the damage. Thus, the facts of the case are distinguishable from Getz Svcs., Inc. v. Perloe, 173 Ga. App. 532 (327 SE2d 761) (1985), where the purchaser did not have notice of an earlier report identifying infestation and damage. We also reject plaintiff’s contention that the written comment declaring the damage not to be structural in nature should control over printed language declaring the report was not intended to be a statement as to the degree of damage present. Since the inspection report, was not a contract, the rules of construction in regard to inconsistent language of a contract do not apply. We find no issue of fact exists as to the representations made by defendant in regard to the extent of damage discovered and revealed. Since the report disclosed the existence of some damage to the area in question, plaintiff was on notice of the problem and may not bring an action for negligent inspection as to that area.

However, we reverse the lower court’s holding in regard to the claim for negligent inspection of other portions of the house. Part of the damage complained of by plaintiff was first discovered when workmen removed moldings and trim from the threshold of certain doors and windows at the rear of the house. Defendant maintains it is not liable for failing to discover this damage since the inspection report was expressly limited to those areas visible and readily accessible to probing and sounding. The report expressly excluded “areas concealed or obstructed . . . [and] any part of the structure to which visible access would require the removal or marring of finished work.” Conflicting testimony was presented as to whether the damage complained of was visible from the readily accessible crawl space under the house before the outside woodwork had been removed. Defendant’s employee admitted the damage complained of was not recent and must have been present at the time the inspections were made. A homeowner may recover for negligent inspection when the evidence shows damage was present and should have been discovered in the course of an inspection. See Perloe v. Getz Exterminators, 163 Ga. App. 397 (294 SE2d 640) (1982), on appeal after retrial, Getz Svcs. v. Perloe, supra. In Butler v. Terminix Intl., supra, we held that discovery of termite damage without proof it had been present at the time of an earlier inspection did not give rise to an action for negligent inspection. However, “[i]f [plaintiffs] had shown affirmative evidence that the termite damage was in existence at the time of the [earlier] inspection, there would have been a genuine issue to avoid a motion for summary judgment.” Id. at 817. In the case now before us, the conflicting evidence regarding whether the damage was readily visible at the time of the inspection creates an issue of fact for the jury.

However, plaintiff presented no evidence to support his claim for fraudulent concealment. Defendant’s employee testified he conducted a complete inspection of the crawl space of the house but denied discovering any damage other than that noted on the diagram. At most, plaintiff may show negligent inspection. However, “[i]n a fraudulent concealment action, the alleged defrauded party must show that the alleged defrauder had actual, not merely constructive, knowledge. If there is no actual knowledge of the defect on the part of the silent party there can be no concealment with the intent and for the purpose of deceiving the opposite party.” Id. at 818.

Therefore, we affirm the grant of summary judgment to defendant as to plaintiff’s claims for breach of contract, fraud, punitive damages and negligent inspection of that area of the house as to which damage or infestation was revealed by defendant’s inspection report. We reverse the grant of summary judgment as to plaintiff’s claim for negligent inspection of areas not identified in the inspection report.

Judgment affirmed in part and reversed in part.

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

Decided July 7, 1987

Rehearing denied July 27, 1987

Winston H. Morriss, John G. Barrett, for appellant.

Richard P. Decker, J. Michael Barber, for appellee.


text:
    73938.
    FARMERS MUTUAL INSURANCE ASSOCIATION OF WALKER COUNTY v. BROWN.
    (360 SE2d 42)
   McMurray, Presiding Judge.

This action was initiated by Edward L. Brown against The Farmers Mutual Insurance Association of Walker County, Georgia for recovery of fire losses under a policy of insurance issued by defendant to plaintiff, “insuring residential buildings owned by [plaintiff] and located in Dade County, Georgia.” Defendant answered plaintiff’s complaint and admitted that it issued to plaintiff an insurance policy and that the property described in the policy was destroyed by fire. However, defendant denied liability and admitted “that it has refused to pay the claim, because of the breach of the policy by Plaintiff and for other sufficient and valid reasons.” After a jury trial, a verdict was rendered in plaintiff’s favor and judgment was entered for plaintiff in the principal sum of $25,500 plus interest. Defendant’s motion for new trial was denied and this appeal followed. Held:

1. In its first enumeration of error defendant contends the trial court erred in failing to grant its motion for directed verdict.

(a) Defendant first argues that plaintiff “failed to properly allege [in his complaint] an insurable interest as is required by Georgia Law.”

“Under the Civil Practice Act when the sufficiency of a complaint is questioned, the pleadings must be construed in the light most favorable to the plaintiff. Instead of being construed as formerly, pleadings are now ‘notice pleadings’ and all doubts must be construed in favor of the complaint, even where unfavorable constructions might also arise therefrom. [Cits.]” Massey v. Perkerson, 129 Ga. App. 895, 896 (1) (201 SE2d 830). Applying this standard in the case sub judice, we find plaintiff alleged sufficient facts in his complaint showing an “insurable interest” in the property at the time of loss. More specifically, plaintiff alleged in his complaint “[t]hat on July 10, 1981, the Defendant issued a casualty insurance policy number 8091 insuring residential buildings owned by the Plaintiff and located in Dade County, Georgia . . . That on June 5, 1983 the Plaintiff suffered a fire loss involving the insured property . . . That thereafter, and in compliance with the express terms and conditions of the policy, the Plaintiff filed a written proof-of-loss claim with the Defendant and made demand upon the Defendant for payment of the loss ...” (Emphasis supplied.)

(b) Next, defendant argues that plaintiff failed to carry his burden of proof at trial because plaintiff presented no evidence showing that he owned the houses, which were the subject of its insurance policy, at the time of destruction.

“On the trial of a case by an insured, under a fire-insurance policy, against the insurer, to recover for the loss by fire of property alleged to have been covered by the policy, ... it is only necessary for the plaintiff to make a prima facie case of the required ownership, which he may do by showing that the policy covered the property damaged and that he was in possession of the property claiming to be the owner thereof. Morris v. Imperial Insurance Co., 106 Ga. 461, 463 (32 SE 595); 19 Cyc. 941 (c); 26 C. J. 539, § 755; Thermal Belt Sanitarium Co. v. Hartford Ins. Co., 157 N. C. 551 (2) (73 SE 337); Commercial Standard Ins. Co. v. E. P. McKnight Chevrolet Co., 43 S. W. (2d) (10); Singer v. Home Ins. Co., 135 Atl. 274 (2).” National Union Fire Ins. Co. v. Tatum, 56 Ga. App. 740, 741 (193 SE 799).

In the case sub judice, it is undisputed that the houses that were damaged by fire were covered by a policy of insurance issued by defendant; that plaintiff was named in the insurance policy as owner of the houses; and, that the insurance policy was effective at the time of the fire loss. Further, the evidence presented at trial authorized a finding that the houses covered by defendant’s insurance policy were rental houses constructed by plaintiff on property purchased by plaintiff. In fact, plaintiff testified that he “had [the houses] completed six months before [he] got insurance,” that he rented the houses from 1981 until they burned and that he owned the fire damaged houses upon the date of trial. This evidence was sufficient to sustain plaintiff’s burden of making out a “prima facie” case at trial. See Morris v. Imperial Ins. Co., 106 Ga. 461 (1) (32 SE 595). The trial court did not err in declining to grant defendant’s motion for directed verdict.

2. Defendant contends in his second enumeration of error that “the trial court erred and abused its discretion in allowing [plaintiff] to reopen his case after [plaintiff] had rested his case-in-chief.” Next, defendant contends in its third enumeration of error, that “[t]he trial court erred in allowing [plaintiff] to introduce certain documents which were not set forth in nor contemplated by the pre-trial order.”

After the close of plaintiff’s case, defendant moved for a directed verdict arguing that plaintiff failed to prove that he had an insurable interest in the property which was described in the insurance contract and was destroyed by fire. In response, the trial court allowed plaintiff to reopen his case and submit documents into evidence showing plaintiff’s ownership interest in the subject property. These documents are the subject of defendant’s third enumeration of error.

Decided July 8, 1987

Rehearing denied July 27, 1987

Ronald R. Womack, for appellant.

James A. Meaney III, for appellee.

“Where evidence of a certain fact is admitted without objection, it is harmless error if incompetent or inadmissible evidence of the same fact is also admitted. Eiberger v. Martel Electronic, 125 Ga. App. 253 (6) (187 SE2d 327); Strother v. South Expressway Radio, 132 Ga. App. 771, 774 (6) (209 SE2d 93); Converse v. O’Keefe, 148 Ga. App. 675 (2) (252 SE2d 92).” Glass v. Lowery, 168 Ga. App. 153 (308 SE2d 616). In the case sub judice, any error in allowing plaintiff to reopen his “case-in-chief” and “introduce certain documents which were not set forth in nor contemplated by the pre-trial order” was harmless in view of other sufficient evidence presented by plaintiff at trial showing his ownership interest in the insured property. See Division 1 of this opinion. Defendant’s second and third enumerations of error are without merit.

3. In its fourth enumeration of error, defendant contends “[t]he trial court erred in denying [its] motion for new trial,” arguing the same grounds asserted in its first three enumerations of error. For the reasons heretofore stated in Divisions 1 and 2, this enumeration of error is without merit.

4. Plaintiff has moved for this court to award damages for frivolous appeal pursuant to OCGA § 5-6-6. Although we find no merit in any of defendant’s enumerations of error, we do not conclude that defendant’s enumerations were so specious for us to conclude that the appeal was taken for delay only. See Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 766 (6) (350 SE2d 322); Re/Max 100 of Sandy Springs v. Tri-Continental Leasing Corp., 177 Ga. App. 111, 112 (2) (338 SE2d 542).

Judgment affirmed.

Sognier and Beasley, JJ., concur.