text:
    A91A1057.
    WALLER v. CLAYTON COUNTY.
    (409 SE2d 561)
   McMurray, Presiding Judge.

This action involves the condemnation of the fee simple title of real property in the vicinity of Atlanta’s Hartsfield International Airport. Condemnor Clayton County initiated this action to implement an urban redevelopment plan adopted pursuant to the Urban Redevelopment Law (OCGA § 36-61-1 et seq.). Condemnee Waller, both individually and as Executor of the Estate of J. A. Waller, duly filed her answer and the matter was submitted to a special master who awarded her $10,642.50. Condemnee appealed the special master’s award to a jury and moved for an injunction.

Condemnee’s motion for injunction contended that there was no specific plan for the redevelopment of condemnee’s land so as to permit an informed choice of whether to make the notification under OCGA § 36-61-9 (c) (2) that condemnee was willing and intended to develop the property in accordance with the urban redevelopment plan. The trial court determined that the urban redevelopment plan was not specific enough to permit condemnee to exercise her option under OCGA § 36-61-9 (c) (2) and ordered the condemnor to provide a specific urban redevelopment plan setting out the specific development and buildings to be erected on condemnee’s property. Following receipt of the revised urban redevelopment plan, condemnee renewed her objection to the plan, contending once more that the plan was not sufficiently specific. In an order filed February 16,1984, the trial court determined that the condemnor had complied with its previous order requiring that condemnee be provided with specific information as to the proposed use of the property and permitting the condemnee 30 days within which to exercise the option provided under OCGA § 36-61-9 (c) (2). On April 4, 1984, an order was filed wherein the trial court found that condemnee had not exercised the option provided by OCGA § 36-61-9 (c) (2) and directed that the remaining issue of compensation be placed on the calendar for trial.

Upon the trial of the compensation issue, the jury awarded condemnee the sum of $8,750 and judgment was entered for this amount. Condemnee appealed to the Supreme Court of Georgia and that Court transferred the case to this Court. Held:

1. Condemnee’s first four enumerations of error are directed to the trial court’s conclusion that the revised urban redevelopment plan provided to condemnee was sufficient to permit condemnee to exercise her option under OCGA § 36-61-9 (c) (2). “ ‘Urban redevelopment plan’ means a plan, as it exists from time to time, for an urban redevelopment project, which plan shall: . . . (B) Be sufficiently complete to indicate such land acquisition, demolition and removal of structures, redevelopment, improvements, and rehabilitation as may be proposed to be carried out in the urban redevelopment area; zoning and planning changes, if any; land uses; maximum densities; building requirements; and the plan’s relationship to definite local objectives respecting appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities, and other public improvements.” OCGA § 36-61-2 (20). “The municipality or county shall, in writing, notify the owner of the real property proposed to be acquired of the planned use of the property as set forth in the urban development plan for the urban redevelopment area wherein the property is located.” OCGA § 36-61-9 (c) (1). Pursuant to the trial court’s order, condemnee was provided with a map showing the proposed use of her land, in conjunction with the lands of other owners, as part of a 66,600 square foot warehouse. Any requirement of specificity in an urban redevelopment plan was amply satisfied by this information. See generally McCord v. Housing Auth. of Atlanta, 246 Ga. 547 (272 SE2d 247). In view of condemnee’s failure to exercise her option under OCGA § 36-61-9 (c) (2) within the time provided, the trial court did not err in scheduling the case for trial on the remaining issues.

2. Condemnee’s next three enumerations are predicated on the following exchange which occurred at trial during condemnor’s direct examination of its expert witness: “Q. All right. Did you in coming up with your opinion also consider other sales of other types of similar property, what we would call a comparable sale? A. Yes, sir; I was — I took similar sales which aided — [CONDEMNEE’S ATTORNEY]: May it please — THE WITNESS: — me in my opinion. [CONDEMNEE’S ATTORNEY]: — the Couft, I’m going to object to him calling sales comparable property. It’s up to this Court to make the decision whether they are comparable or not before this witness recites the fact that they are comparable. Now, he can certainly say he used sales. He can even say that they might have been similar, but he cannot say they are comparable, and I object to it. THE COURT: Well, it’s a semantical objection. Ladies and Gentlemen of the Jury, whether it’s comparable or not is ultimately not even up to me. It’s up to you to determine again what is the value of this property and is the whole object of this whole investigation. I’ll allow, [condemnor’s attorney] and [condemnor’s expert], if you say comparable, I’ll — try to say similar. Ladies and Gentlemen, it’s for you to determine whether it is or is not. It’s not up to this witness to tell you whether it is or is not.”

Condemnee contends the trial court erred in overruling her objection to condemnor’s reference to the other sales used in formulating the expert’s opinion as “comparable.” However, this characterization appears to be correct and no foundation concerning the similarity of the other property is necessary when the evidence of sales of comparable property is admitted to show the basis of the expert’s opinion. Panos v. Dept. of Transp., 162 Ga. App. 53, 55 (10) (290 SE2d 295). This situation may be distinguished from that which occurs when the evidence of other sales is admitted as direct proof of the value of the property at issue, in which instance the trial court must exercise its discretion to determine whether the proffered evidence of sale is of probative value in relation to the property at issue. Fulton County v. Elliott, 109 Ga. App. 775, 776 (1) (137 SE2d 477) (reversed on other grounds, Elliott v. Fulton County, 220 Ga. 377 (139 SE2d 312)); Aycock v. Fulton County, 95 Ga. App. 541, 543 (4) (98 SE2d 133).

While condemnee also argues that the trial court’s instructions to the jury were erroneous, no objection preserving this issue was made at trial. Errors raised for the first time on appeal will not be considered. Jackson v. Easters, 190 Ga. App. 713, 715 (3) (379 SE2d 610).

3. Condemnee contends the trial court erred in permitting the condemnor to elicit evidence concerning the price at which she had purchased the property 17 years prior to trial since such evidence was too remote. However, evidence of the actual purchase cost of the property at issue has been held to be admissible and a proper element for consideration by a jury in determining the value of property. Housing Auth. of Atlanta v. Goolsby, 136 Ga. App. 156, 159 (3) (220 SE2d 466); Seaboard Coast Line R. Co. v. Toole, 128 Ga. App. 24, 25 (1) (195 SE2d 282).

Decided July 16, 1991

Reconsideration denied July 29, 1991

John L. Watson, Jr., for appellant.

Foster & Foster, Michael D. Anderson, for appellee.

4. In her ninth enumeration of error, condemnee contends that the trial court erred in allowing a witness for the condemnor to pass upon the opinion and credibility of her expert witness. Condemnor’s witness was permitted to testify as to the reasons he did not consider the sales of real property, used by condemnee’s expert in forming his opinion of the value of the property at issue, to be comparable. Disproving the facts testified to by a witness is a proper method of impeachment. OCGA § 24-9-82; Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878, 879 (2) (216 SE2d 694); Hayes v. Hay, 92 Ga. App. 88, 92-93 (88 SE2d 306).

5. The trial court did not err in refusing to admit into evidence three exhibits submitted by condemnee. The exhibits consisted of certified copies of deeds of record in the office of the Clerk of the Superior Court of Clayton County, but no foundation as to the relevance of the exhibits was presented. Questions of relevancy of evidence are for the trial court and in the absence of abuse of judicial discretion this Court will not interfere. Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (4) (387 SE2d 593). We find no error in the exclusion of the proffered evidence.

6. Condemnee’s remaining enumerations of error complain of the failure of the trial court to give certain requested charges to the jury. Since the refused instructions were either not adjusted to the evidence at trial or stated principles included in the trial court’s charge, these enumerations of error are without merit. Travel Agency Group v. Henderson Mill Travel, 193 Ga. App. 882, 885 (1) (389 SE2d 511); State Farm &c. Ins. Co. v. U. S. Fid. & Guar. Co., 190 Ga. App. 220, 223 (5) (378 SE2d 400).

Judgment affirmed.

Andrews, J., concurs. Sognier, C. J., concurs in the judgment only.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A1325.
    PHILLIPS v. THE STATE.
    (409 SE2d 557)
   McMurray, Presiding Judge.

In Phillips v. State, 261 Ga. 190 (402 SE2d 737), the Supreme Court reversed this Court’s dismissal of defendant’s direct appeal from convictions in the Probate Court of Meriwether County for speeding and driving under the influence of alcohol. The dismissal of defendant’s direct appeal was based on this Court’s holding in Fellman v. State, 189 Ga. App. 203 (375 SE2d 476), cert. denied at 189 Ga. App. 911. We now vacate this Court’s judgment of dismissal in Case No. A90A1325, Phillips v. State (unpublished), and address defendant’s sole contention that the superior court erred in failing to vacate his convictions because no written waiver of trial by jury appears in the record. Held:

Decided July 15, 1991

Reconsideration denied July 30, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

“In Nicholson v. State, [261 Ga. 197 (403 SE2d 42), the Supreme Court of Georgia], deciding that the written waiver of jury trial was a matter of personal, rather than subject-matter, jurisdiction, held, ‘(i)n those probate court cases in which there is no record that a timely demand for jury trial was made, the right to a jury trial is waived.’ [Id. at 200 (6,a).] Once it is waived in the probate court, the right to a jury trial may not be raised for the first time on appeal to the superior court, id., or to the appellate court, Dossett v. State, 261 Ga. 362.” Walton v. State, 261 Ga. 392 (405 SE2d 29). In the case sub judice, we find no probate court record of an objection to proceedings without a jury. Consequently, “the right of jury trial has been waived in the probate court proceedings [and it] cannot be raised for the first time on appeal.” Nicholson v. State, 261 Ga. 197, 200 (6b) (403 SE2d 42).

Judgment affirmed.

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


author: Carley, Judge.

text:
    A91A0008.
    DANIEL v. PARKINS.
    (409 SE2d 233)
   Carley, Judge.

Appellee-plaintiff filed suit against appellant-defendant, seeking to recover for a back injury that he allegedly suffered as the result of an automobile collision. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment that was entered by the trial court on the jury’s verdict.

1. Appellant stipulated to liability prior to trial. In one of his enumerations of error, appellant urges that, “[o]ver objection . . ., appellee was allowed to cross-examine appellant as to his failure to previously admit liability prior to the commencement of trial. . . .”

The record demonstrates that no objection that was raised below related to the timing of appellant’s stipulation as to liability. Accordingly, this enumeration presents nothing for review. “[W]here the objection urged below is not argued here it must be treated as abandoned, and where an entirely different basis of objection is argued on appeal which was not presented at trial, we will not consider this as error, for we are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error. [Cit.]” Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986). “An objection to the admission or exclusion of evidence must be specifically raised at trial in order to be heard on appeal. [Cit.]” Dobbs v. Titan Properties, 178 Ga. App. 389, 392 (4) (343 SE2d 419) (1986). “Only those grounds urged below will be considered on appeal. [Cit.]” Tanner v. Gilleland, 186 Ga. App. 377, 378 (1) (367 SE2d 257) (1988).

2. A physician was allowed to testify that, in his opinion, there was a causal connection between the collision and appellee’s post-collision back surgery. Appellant urges that it was error to allow this expert opinion testimony because it was based solely on hearsay.

The physician did not purport to base his opinion exclusively upon other physicians’ reports which were not admitted into evidence. Compare Stouffer Corp. v. Henkel, 170 Ga. App. 383, 386 (2) (317 SE2d 222) (1984). Instead, the physician’s expert opinion was given in response to a hypothetical question which asked him to assume certain facts which were not within his personal knowledge and there is no contention on appeal that such assumed facts were not otherwise in evidence. Accordingly, it was not error to allow the physician to answer the hypothetical question. “[A]n expert witness’s opinion may be predicated upon facts placed in evidence by the testimony of other witnesses or by any other legal means. ...” Mutual Benefit &c. of Omaha v. Hickman, 100 Ga. App. 348, 362 (2) (111 SE2d 380) (1959).

3. Appellant enumerates as error the admission of evidence relating to appellee’s medical benefits coverage under a policy of insurance.

This evidence was apparently offered by appellee in rebuttal of such collateral source evidence as had previously been introduced by appellant. Appellant’s collateral source evidence was itself inadmissible. Denton v. Con-Way &c. Express, 261 Ga. 41 (402 SE2d 269) (1991). Obviously, the rebuttal of appellant’s inadmissible evidence caused him no harm such as would authorize the grant of a new trial.

4. After the collision, appellee incurred medical bills for his preexisting heart condition as well as medical bills for the back injury that had allegedly resulted from the collision. “Where [medical] bills include charges for treatment, drugs, and hospitalization for items other than those arising out of the cause of action, the plaintiff has the duty to segregate the irrelevant expenses since he has the burden of proof to show his losses in such manner as can permit calculation thereof with a reasonable degree of certainty.” Lester v. S. J. Alexander, Inc., 127 Ga. App. 470 (2) (193 SE2d 860) (1972). Appellee undertook to meet this duty by submitting for admission into evidence only edited medical bills from which the expenses that he had incurred in connection with his heart condition had purportedly been excised. Appellant nevertheless objected to the admission of even these edited medical bills, urging that there had been no testimony as to “who [the health care providers listed on the bills] are, how are we going to know . . . which ones are for the heart and which ones aren’t?” The admission of the edited medical bills over this objection is enumerated as error.

The admission of appellee’s edited medical bills was dependent upon neither testimony by nor testimony about the specific health care providers. All that was required was “that it be shown [that medical] expenses were incurred in connection with the treatment of the injury, disease or disability involved in the subject of litigation at the trial, which may be done by lay testimony. [Cit.]” Lester v. S. J. Alexander, Inc., supra at 470 (1). Accordingly, appellee’s own testimony that the edited medical bills represented expenses incurred in connection with the treatment of the back injury that he allegedly sustained in the collision was sufficient to authorize their admission into evidence. Georgia Farm &c. Ins. Co. v. Middleton, 171 Ga. App. 454 (2) (319 SE2d 909) (1984). Whether the edited medical bills did in fact represent treatment only for appellee’s back injury and whether any irrelevant bill for his pre-existing heart condition had been included in those submitted for admission were topics for appellant to pursue on cross-examination of appellee. QCGA § 24-7-9 (b). Accordingly, there was no error in admitting the edited medical bills over appellant’s objection.

5. Appellant moved for a directed verdict as to his liability for any expenses incurred in connection with appellee’s back surgery, urging that there was no evidence to authorize a finding that the collision had necessitated the back surgery. See Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987). Although the denial of this motion is enumerated as error, it is without merit in light of our holding in Division 2.

6. Appellant enumerates as error the trial court’s failure to sustain a mere objection to an allegedly improper remark made in closing argument by appellee’s counsel. No reviewable ruling having been invoked, this enumeration is without merit. P. H. L. Dev. Corp. v. Sammy Garrison Constr., 171 Ga. App. 393, 396 (4) (319 SE2d 543) (1984).

Decided June 25, 1991

Reconsideration denied July 30, 1991.

Greer, Klosik & Daugherty, John F. Daugherty, Donald J. Sharp, for appellant.

Clark & Smith, Craig T. Jones, for appellee.

7. The jury was otherwise instructed on the legal principles contained in appellant’s refused requests to charge. Accordingly, the failure to give those refused requests was not error. Lenny’s Number Two v. Echols, 192 Ga. App. 371, 374 (3) (384 SE2d 898) (1989).

8. Appellant enumerates as error the admission of certain evidence over a hearsay objection. However, this enumeration has not been supported by argument or citation of authority. Accordingly, it is deemed abandoned in accordance with Court of Appeals Rule 15 (c) (2). Estfan v. Poole, 193 Ga. App. 507, 512 (6) (388 SE2d 373) (1989).

9. “We do not reach the matter raised in [appellant’s] brief concerning the [refusal of the trial court to take judicial notice of the number of feet in a mile] since the issue was not enumerated as error.” Irvin v. Askew, 241 Ga. 565, 566 (2) (246 SE2d 682) (1978).

10. Appellee’s motion for the imposition of frivolous appeal damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0108.
    ALLSTATE INSURANCE COMPANY v. EVANS et al.
    (409 SE2d 273)
   Banke, Presiding Judge.

This litigation arises from a multi-vehicle collision allegedly caused by the negligence of a driver who was insured under a policy of motor vehicle liability insurance issued by the appellant. The appellees herein, Steve Evans and Brian Branch, filed personal injury actions against the insured within 12 months after the accident; and while those actions were pending, the appellant insurer settled certain suits which had been filed against the insured by other claimants more than 12 months after the accident. In doing so, the appellant paid out $250,000 of the $300,000 in liability coverage which the policy provided per accident. The appellant had previously rejected a joint offer by all of the claimants to settle for a total amount which was within the policy limits; however, the record does not reveal how much the appellees herein had offered to accept in connection with that offer.

Subsequent to the settlement of the other claims arising from the accident, the appellees obtained separate jury verdicts against the insured in the amount of $35,000 each. Judgment was thereafter entered against the insured in favor of Evans for $36,755 (reflecting the inclusion of pre-judgment interest), plus costs, and in favor of Branch for $35,000, plus costs. The appellant tendered the remaining $50,000 of liability coverage to the appellees in equal payments of $25,000, whereupon they brought the present action seeking to hold the appellant liable to them for the full amount of their judgments. In addition, Evans sought a declaration as to the liability of his own motor vehicle insurance carrier, Georgia Farm Bureau Mutual Insurance Company, for uninsured/underinsured motorist benefits in the event the appellant was determined not to be liable to him for the full amount of his judgment. The case was submitted to the trial court for a ruling based on stipulated facts; and the court ruled that, based on OCGA § 9-12-90, the appellant was liable for the full amount of the appellees’ judgments against the insured, plus costs, and interest. This appeal followed. Held:

OCGA § 9-12-90 provides as follows: “(a) Liens of all judgments obtained in actions for damages growing out of a common disaster or occurrence shall be equal in rank or priority regardless of the date of the rendition of the verdict or the entering of the judgment. However, this Code section shall apply only to judgments obtained in actions which are filed within 12 months from the date of the happening of the disaster or occurrence giving rise to the cause of action, (b) This Code section applies to all actions filed in the courts of this state in which damages are sought to be recovered on account of injuries sustained in or death resulting from a common disaster or occurrence.”

This statute clearly has no application to the present case, inasmuch as no issue involving the priority of judgment liens is involved here. Compare White v. Ga. Farm &c. Ins. Co., 234 Ga. 186 (215 SE2d 240) (1975). Cf. Cannon v. Tant, 229 Ga. 771 (195 SE2d 15) (1972). Rather, this case concerns the right of a casualty insurer to exhaust the policy coverage applicable to a common disaster or occurrence by selectively settling a portion of the claims against its insured arising from the accident, to the detriment of other claimants who are thereby denied the means to satisfy their claims against the insured. There are no Georgia cases dealing with this particular issue. However, the courts of other jurisdictions which have confronted the issue appear to have held uniformly that “[a] liability insurer may, in good faith and without notification to others, settle part of multiple claims against its insured even though such settlements deplete or exhaust the policy limits so that remaining claimants have no recourse against [the] insurer.” 7C Appleman, Ins. Law & Practice, § 4711, p. 409 (Rev. ed.). See also 15A Couch On Ins. 2d., § 56.35, pp. 48-49; Anno: Basis and manner of distribution among multiple claimants of proceeds of liability insurance policy inadequate to pay all claims in full, 70 ALR2d 416, pp. 423-425, § 5. Were the rule otherwise, an insurer would be precluded from settling any claims against its insured in such a situation and would instead be required to await the reduction of all claims to judgment before paying any of them, no matter how favorable to its insured the terms of a proposed settlement might be. Such a policy would obviously promote litigation and would also increase the likelihood, in many cases, that the insured would be left with a total adjudicated liability in excess of his policy limits.

Decided July 15, 1991

Reconsideration denied July 30, 1991

Robert S. Slocumb, Bonnie K. Cole, for appellant.

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., Andrew, Threlkeld & Ellington, John J. Ellington, Richard D. Phillips, for appellees.

There is neither any evidence nor any allegation that the appellant in this case acted in bad faith in settling with the other claimants. Applying the foregoing rule adopted by other jurisdictions which have considered the issue, we consequently hold that the trial court erred in ruling that the appellant was liable to the appellees for the full amount of the judgments which they had obtained against its insured.

Judgment reversed.

Carley and Beasley, JJ., concur.


author: Beasley, Judge. Banke, Presiding Judge,

text:
    A91A0146.
    ARP v. HAMMONDS.
    (409 SE2d 275)
   Beasley, Judge.

The father of two children appeals, after obtaining permission under OCGA § 5-6-35 (a) (2), from a judgment entered in favor of the mother in a change-of-custody action she initiated.

When the parties were divorced in August 1988, the father obtained custody pursuant to the separation agreement which was incorporated into the decree. Although the agreement specified “joint custody,” its actual effect was for the father to have custody and for the mother to have visitation privileges.

The children, then ages four and five, and the father were living in the marital home, but they soon moved to an apartment adjacent to his parents’ home. It appears that the father is dependent on social security disability benefits due to a neurological condition which prevents him from working, but that his parents provided the apartment and other assistance sufficient to enable the father to meet the children’s needs.

The mother remarried in September 1989 and filed the present change of custody action the following March. The father responded with a counterclaim for child support. At the evidentiary hearing in August, the mother testified that the father had engaged in certain violent and emotionally unstable conduct towards her since their divorce. In particular, she recounted that in March 1989, she called police to complain that he was sitting in a car in the parking lot of her apartment, spying on her, and that during that same month he had taken out a warrant against her on a groundless theft charge which he had later dropped. She further stated that in July 1989, after she returned the children to his home following her weekend visitation, he had attacked, choked, and thrown her to the ground, evidently due to anger over her having permitted one of the children to accompany her male friend to the grocery store.

She also testified that the father had induced her to sign the separation agreement by falsely promising to remain with the children in the marital residence, that he had failed to keep her apprised of school and religious functions, that he had hung up the phone on her when she was talking to the children and refused to allow them to telephone her for two days thereafter, and that he had refused to grant her two of the four weeks of summer visitation to which she was entitled during the current summer.

The trial court concluded from the evidence that both parties were fit to have custody but that there had been material changes in circumstances since the entry of the divorce decree affecting the welfare and best interest of the children and warranting a change of custody to the mother.

In 11 enumerations of error the appellant attacks the findings, the legal basis, and the conclusions reached by the court.

The legal principles governing the trial judge’s awesome role in such cases are as follows. “Once a permanent child custody award has been entered, the test for use by the trial court in change of child custody suits is whether there has been a ‘change of conditions affecting the welfare of the child.’ (Cits.)” Gazaway v. Brackett, 241 Ga. 127 (244 SE2d 238) (1978). “[A] showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child, is insufficient to warrant a change in custody.” Robinson v. Ashmore, 232 Ga. 498, 502 (207 SE2d 484) (1974). “Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)” Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).

“OCGA § 19-9-3 (a) provides that in change of custody cases the trial court’s duty ‘shall be to exercise its discretion to look to and determine what is for the best interest of child or children and what will best promote their welfare and happiness and to make its award accordingly.’ ” Lifsey v. Lifsey, 256 Ga. 613 (351 SE2d 637) (1987). This rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is “incumbent ... to hear evidence with respect to changed conditions and render a decision based upon [that judge’s] discretion and good judgment as [that judge] viewed the evidence, giving primary consideration to the welfare of the child.” Robinson v. Ashmore, supra at 502 (IV). “In cases of this nature where the evidence is heard before the judge alone and without the intervention of a jury, and where the principal consideration is the welfare of the child involved, the proceeding is not to be governed by strict rules applicable to ordinary trials. [Cits.] Unless the record before this court clearly indicates that the judge based his [or her] decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his [or her] decision he [or she] considered only legal and admissible evidence.” Tyree v. Jackson, 226 Ga. 690, 696 (3) (177 SE2d 160) (1970).

So it is that the remote reviewing court recognizes not only the physical limitations put upon it by distance in time and space, but it also recognizes that by law it has no judgment to impose in the matter. The exercise of discretion is granted solely and exclusively to the trial judge, and “ ‘[i]f there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal.’ (Cit.)” Lifsey, supra at 614; Gazaway v. Brackett, 241 Ga. 127, 128, supra.

The argument is that the trial court erred because there is no evidence that the changes in conditions adversely affected the children.

First of all, it is clear that the trial court did not misapprehend the law in this regard. See Tyree, supra. In the order, the trial court expressly concluded that “there has been a material change in circumstance with the [father] which adversely affects the welfare and best interests of the children,” and that “there have been material changes in circumstance to the [mother] which favorably impact the welfare and best interests of the children and support her being the custodian of the children.” So the trial court had the best interests of the two young girls centrally in mind, as he should, and followed the Supreme Court’s express emphasis “that any consideration of custody must always be made in the light of the best interests of the child involved.” Robinson, supra at 501.

The evidence in the case, some of which is narrated above is sufficient to authorize a change of custody. The court found that the father refused summertime visitation to the mother and refused visitation over the phone. “[T]he repeated denial of the non-custodial parent’s visitation rights” authorizes a change. Bull v. Bull, 243 Ga. 72 (2) (252 SE2d 494) (1979).

Moreover, the trial court found, and the evidence showed, a pattern of violations of the divorce decree. “This alone would authorize a modification of such decree. (Cits.)” Tyree, supra at 696. Although in that case the violations were of terms involving visitation, in this case the court expressly found that this pattern of violations “constitutes a material change in circumstances adversely affecting the best interests and welfare of the children.” The evidence supported the findings of fact of “willful violations . . . including, but not limited to, refusing to consult with wife as the divorce decree required; refusing to allow the children to communicate with wife over the phone; refusing wife her summertime visitation; and by physically and mentally harming wife as evidenced by . . . testimony . . . police reports and the hospital reports. . . .” As emphasized in Robinson, supra at 502, “ ‘A change of circumstances that would render a prior judgment inconclusive is not necessarily limited to a change in the moral or financial condition of the parent to whom the initial award was made, but includes any new and material change in the circumstances of either parent or of the children which might substantially affect the health, happiness, or welfare of the children.’ (Emphasis supplied.),” quoting from Handley v. Handley, 204 Ga. 57, 59 (48 SE2d 827) (1948). The court also found that the change in residence, from the marital residence which had been agreed upon “for stability purposes for the minor children” and which was changed to a small apartment despite the husband’s promise, was a material change for the two little girls.

Based on the evidence, the trial judge could draw the reasonable inference that the types of behavior exhibited by the father towards the mother, which in large measure were contemptuous of court authority, and his negative attitude and overt antipathy towards the girls’ relationship with her, demonstrated by his repeated insulation of them from contact with her, adversely affected their natural relationship with their mother because of his influence on them. This could be deemed harmful to the young daughters, aged five and seven at the time of the order appealed from. He could also draw the reasonable inference that the father’s repeated interference with the mother’s participation in child-rearing, disserved their welfare. These support the conclusion that it was not in the little girls’ best interest to remain in this environment.

Such a conclusion is strengthened by consideration of all the surrounding changed circumstances on both sides, adverse in the father’s financial and physical circumstances and improved in the mother’s. The father was unable to care for the girls without substantial financial and care-giving assistance from his parents whereas the court found that the mother had remarried, achieved financial stability and purchased a new home with adequate living space for the girls. As the Supreme Court pointed out in Handley, supra at 59: “ ‘The capacity, ability, or fitness of the party to whom the child was awarded in the previous proceeding may thereafter become entirely different. The status of both such parties and the child may have changed. Change of circumstances may render a change necessary in order to promote the health, happiness or welfare of the child.’ [Cits.]”

This case is in the same legal posture as was the case of Branton v. Stone, 169 Ga. App. 737 (315 SE2d 24) (1984), and the same principles, which are set out above, apply. The conclusion is inescapable that the judgment must be affirmed because, as in Branton, “[n]o abuse of discretion has been shown. . . .” Id. at 738.

Judgment affirmed.

Birdsong, P. J., Parley, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.

Banke, Presiding Judge,

dissenting.

Although the trial court is given a wide discretion in resolving custody disputes between parents, that discretion is not totally unfettered. “[A] showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child, is insufficient to warrant a change in custody.” Robinson v. Ashmore, 232 Ga. 498, 502 (207 SE2d 484) (1974). “[T]he trial judge is . . . restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)” Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).

I find no evidence in this case that the relative circumstances of the parties have changed since the entry of the divorce decree in such a manner that an award of custody to the mother would result in any material benefit to the children. The trial court found that either parent would be a fit and proper custodian, and the principal of the children’s school, who was the only disinterested witness to testify in the case, stated that “[t]he children are doing very well in school, and . . . seem to be thriving in the atmosphere in which they are at this time.” To all appearances, what we have here is simply a situation where the mother left the children in the care and custody of the father while she went off to establish a new life and then, when she found it convenient to do so, returned for them. At no point during the interim, not even after she had remarried and achieved financial stability, did she make any financial contribution to the cost of supporting the children. Had it been the father who had acted in this manner rather than the mother, it is difficult to imagine that the court would have ordered a change in custody.

The trial court’s conclusion that a change in custody was warranted was based on a determination that the following material changes in circumstances had occurred since the entry of the parties’ divorce decree: (1) The father had sold the marital residence and moved into an apartment adjacent to his parents in violation of his promise “to remain in the marital residence for stability purposes for the minor children”; (2) he had “established a pattern of wilful violations of the divorce decree including, but not limited to, refusing to consult with [the mother] as the divorce decree required; refusing to allow the children to communicate with [her] over the phone; refusing . . . her summertime visitation; and . . . physically and mentally harming [her] . . .”; and (3) the mother had “experienced positive material changes in her circumstances affecting the welfare and best interests of the children” in that she had “remarried, . . . reached financial stability and . . . purchased a new home.” However, the transcript contains no evidence of any “pattern” of violations of the divorce decree by the father, nor is there any evidence to support a conclusion that the children’s welfare would be materially enhanced by a change of custody.

With respect to the finding that the father had broken a promise to remain at the marital residence, there is no indication that the parties’ separation agreement contained any provision specifying where he and the children would reside, see Moore v. Wiggins, 230 Ga. 51, 54 (195 SE2d 404) (1973), nor is there any indication that the mother complained of the father’s decision in this regard at any time prior to the hearing on her change-in-custody petition. Moreover, the evidence indicates without dispute that this change of residence had a salutary effect on the children in that it had allowed their paternal grandparents to be actively involved in raising them. Although the positive change which the mother experienced in her financial circumstances certainly had the potential for enhancing the children’s welfare, it was not necessary to award her custody of the children to afford them the benefit of this improvement. Rather, the court could simply have ordered her to contribute to their support.

While it has been held that “a pattern of continued wilful acts . . . intended to thwart and nullify the visitation provisions of the [divorce] decree” will support a change in custody from one parent to another, Moore v. Wiggins, supra, 230 Ga. at 55, there was no showing of any such “pattern” in this case. Reprehensible though the father’s conduct in assaulting the mother in July of 1989 may have been, it appears to have been an isolated incident; and there is no suggestion that the children witnessed it or were otherwise aware of it. With respect to the father’s failure to consult with the mother on decisions affecting the children’s health, welfare, and education, the mother offered no testimony that any such decisions had been made without consulting her but merely testified that the father had failed to keep her informed about school and religious functions. With regard to visitation, it appears that the father had in fact allowed the mother more visitation than she was entitled to under the terms of the divorce decree, permitting her to have the children every other weekend although the decree specified that she was only entitled to such visitation two weekends per month. Although the mother testified that the father had refused during the summer in which the hearing was held to give her two of the four weeks of visitation to which she was entitled, the hearing took place in early August, meaning that there was still time for him to comply with his obligation in this regard. Although the mother indicated that there had been occasions in the past when the father had not allowed her to talk to the children on the telephone, she recounted only one such incident, which she attributed to his anger at her having given them haircuts without consulting him.

Decided July 15, 1991

Reconsideration denied July 30, 1991

Murphy, Murphy & Garner, Michael L. Murphy, Julie K. Wil Hams, for appellant.

What the evidence in this case establishes is not a pattern of attempts by the father to frustrate the mother’s visitation rights under the divorce decree but rather a pattern of overall compliance by the father with the visitation provisions of the decree, punctuated by few isolated incidents of jealous or hostile behavior on his part. It appears most unlikely that these incidents constituted the motivating factor behind the petition for change of custody, since virtually all of them occurred during the first year following the parties’ divorce, yet the petition was not filed until months later, after the mother had remarried and the relationship between the parties had become less volatile. This chronology strongly suggests that it was the mother’s remarriage and the attendant enhancement of her domestic and financial resources, rather than any difficulty in exercising her visitation rights or communicating with the children, which prompted her to seek a change of custody. Because the children could be afforded the benefit of the improvement in the mother’s financial circumstances through the remedy of periodic support payments, and because there is no evidence whatever indicating that their welfare would be otherwise enhanced by a change of custody to her, I would hold that the trial court erred in ordering such a change and would remand the case for a hearing on the father’s counterclaim for child support.

I am authorized to state that Chief Judge Sognier, Presiding Judge McMurray, and Judge Pope join in this dissent.

Tisinger, Tisinger, Vance & Greer, Paul E. Weathington, for appellee.


text:
    A91A0155.
    BRAMBLETT v. HANSEL-SCALES, INC. et al.
    (409 SE2d 280)
   Carley, Judge.

Seeking to recover for injuries sustained in a fall down a stairway, appellant-plaintiff brought suit against appellee-defendants. Appellees answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in appellees’ favor after eliminating from its consideration the most favorable portions of appellant’s testimony regarding the cause of her fall. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Appellant appeals from that order.

1. The first issue for resolution is whether the trial court was correct in eliminating the favorable portions of appellant’s testimony pursuant to Prophecy Corp. v. Charles Rossignol, Inc., supra.

“In each case, ... it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.” Prophecy Corp. v. Charles Rossignol, Inc., supra at 30 (2). A review of the record reveals the existence of no such contradiction in appellant’s testimony as to the cause of her fall. Appellant has consistently maintained that the carpeting covered a raised board at the head of the stairway and that this carpet-covered unevenness was the obstacle over which she tripped. Compare Boyd v. Garden Center, 197 Ga. App. 198, 199 (1) (397 SE2d 626) (1990). It is true that, in several instances in her testimony, appellant acknowledged that she does not have personal knowledge as to what it was that had actually caused her to trip, since she had not been looking down at the time she tripped and, after falling down, she had been unable to return to the head of the stairway. However, the mere fact that appellant had no personal knowledge of what had actually caused her to fall would certainly not be inconsistent with her contentions as to what had actually caused her to fall. In proving her contentions regarding the cause of her fall, appellant would not be limited to her own personal knowledge testimony. Since there is no inconsistency between appellant’s acknowledgment of a lack of personal knowledge on the one hand and her contentions as to the cause of her fall on the other, the trial court erred in eliminating any portion of appellant’s testimony from consideration.

Decided July 15, 1991

Reconsideration denied July 30, 1991

Rowe & McGarity, J. Michael McGarity, for appellant.

Neely & Player, Leigh M. Wilco, Julie A. Taylor, Julianna Kauderer, Powell, Goldstein, Frazer & Murphy, William V. Custer IV, David G. Ross, for appellees.

2. The existence of a carpet-covered obstacle was otherwise shown by direct evidence and the circumstantial evidence would authorize a finding that it was the cause of appellant’s fall. Thus, construing the evidence most favorably for appellant and most strongly against appellees, a genuine issue of material fact remains. Compare Zellers v. Theater of the Stars, 171 Ga. App. 406 (319 SE2d 553) (1984). It follows, therefore, that the trial court erred in granting summary judgment in favor of appellees.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A91A0204, A91A0205.
    DEPARTMENT OF TRANSPORTATION v. FRANCO’S PIZZA & DELICATESSEN, INC. (two cases).
    (409 SE2d 281)
   Pope, Judge.

This is the fourth appearance of this case before this court. The condemnor/appellant the Department of Transportation (DOT) filed separate appeals from the judgment entered by the trial court on the jury verdict and from an order awarding attorney fees to the condemnee/appellee Franco’s Pizza & Delicatessen, Inc. (Franco’s). The cases have been consolidated for appellate review.

On December 18, Í980, DOT condemned Franco’s leasehold interest in property located at the corner of 1-85 and Peachtree Road in Atlanta, Georgia. The pretrial history of this case is recited sufficiently in the two opinions issued by this court from the parties’ interlocutory appeals in this case and will not be restated here. See Franco’s Pizza & Delicatessen v. Dept. of Transp., 178 Ga. App. 331 (343 SE2d 123) (1986); Department of Transp. v. Franco’s Pizza & Delicatessen, 164 Ga. App. 497 (297 SE2d 72) (1982). A jury trial was held in this case commencing on December 15, 1986. The jury determined that the amount of compensation due to Franco’s by DOT was $511,400. The trial court entered judgment based on the verdict on December 29, 1986.

DOT filed a motion for new trial and subsequently amended that motion twice. That motion, as amended, was denied on April 10,1989. DOT appealed from the trial court’s order denying its motion for new trial and Franco’s cross-appealed from certain orders of the trial court. While DOT’s motion for new trial was pending before the trial court, DOT wrote a letter to the trial court judge in which it objected to the trial court’s entry of judgment on the basis that the judgment was premature pursuant to OCGA § 32-3-19 (b) until appellate review was concluded in this case. On February 27, 1987, the trial court issued an order , vacating the judgment.

On November 29, 1988, this court issued its opinion in Department of Transp. v. Petkas, 189 Ga. App. 633 (377 SE2d 166) (1988), in which this court rejected DOT’s position as advanced to the trial court in this case concerning entry of judgment pursuant to OCGA § 32-3-19 (b). This court further found in that case that until the original judgment was reinstated there was “no actual judgment in the case upon which DOT could predicate either its motion for new trial or its appeal from the denial thereof.” Id. at 636 (2). DOT was represented by the same counsel in the Petkas case as in this case. After the Supreme Court of Georgia denied certiorari in the Petkas case, DOT alleges that it again wrote to the trial judge and informed him of that decision and copied opposing counsel on that letter. The trial judge denies receipt of that letter. Neither party moved the trial court to reinstate the original judgment in this case, nor did the trial court reinstate that judgment on its own motion.

After this court issued the Petkas decision and the trial court denied DOT’s motion for new trial, DOT filed a notice of appeal to this court on May 10, 1989. Because this court found that the parties had notice of the Petkas decision, yet failed to follow the binding precedent established in that case, this court dismissed the pending appeals with direction that the original judgment be reinstated in accordance with Petkas. Department of Transp. v. Franco’s Pizza & Delicatessen, 194 Ga. App. 437 (390 SE2d 655) (1990). On remand, the trial court conducted a hearing on how the trial court should comply with this court’s dictates on remand and why attorney fees should not be assessed against DOT. The trial court reinstated the judgment on June 7, 1990. By order dated July 3, 1990, the trial court found that the last appeal to this court in this case was frivolous based on the Petkas decision and awarded attorney fees in the amount of $19,430 to Franco’s for “attorney’s time and effort spent in reviewing their record and preparing an appeal, filing a brief and argument of same before the Court of Appeals.”

Case No. A91A0204

1. In DOT’s first enumeration of error, it alleges as error the trial court’s grant of Franco’s motion in limine to preclude DOT from showing the value of the whole take. As we noted in Department of Transp. v. McLaughlin, 163 Ga. App. 1, 2 (1) (292 SE2d 435) (1982), “how to arrive at just and adequate compensation for separate interests of condemned property has been the subject of much controversy.” The general procedure that was authorized by the Georgia Supreme Court in Department of Transp. v. Olshan, 237 Ga. 213 (227 SE2d 349) (1976) is that the condemnor should file one in rem condemnation action, join all parties whose presence is necessary to condemn all interests, and to instruct the jury first to determine the value of the whole, and then determine the amounts to be awarded to the separate interests. In this case, however, there is only one party who wishes to have the value of its interest in the property determined by a jury. As the United States Supreme Court recognized in Boston Chamber of Commerce v. City of Boston, 217 U. S. 189, 195 (30 SC 459, 54 LE 725) (1910), in a condemnation action, the pertinent question of value to be addressed is what has the owner of the property interest lost, not what the taker has gained. If evidence about the value of the whole is introduced in a condemnation action, even when there are no competing property interests to be valued by the jury, the focus of the jury might shift to what the condemnor gained rather than what the property interest owner lost. DOT has not shown this court how testimony concerning the value of the whole would tend to either prove or disprove the value of the property interest in question. DOT simply argues that prohibiting it from showing the value of the whole denied it the opportunity to show the context of the opinions rendered by its appraisers. A review of the record, however, reveals that DOT’s appraisers presented testimony about how they valued Franco’s leasehold interest and why they determined that leasehold interest had no value. Under these circumstances, we do not find that DOT’s inability to present the value of the whole deprived DOT of its rights under OCGA § 32-3-16 as it contends. We find this enumeration of error to be without merit.

2. DOT contends that the trial court erred in denying its motion in limine to prohibit all witnesses from using the word “unique” in their testimony. Whether the condemned property had some “uniqueness” for Franco’s business was a legal conclusion to be reached by the jury. See Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (309 SE2d 816) (1983). An “ ‘expert may aid the jury, but he can not act as a member of the jury; nor, while on the stand, can he transcend the functions of a witness and, under the guise of giving testimony, state a legal conclusion.’ Travelers Ins. Co. v. Thornton, 119 Ga. 455, 456 (46 SE 678) [(1904)].” Gage v. Tiffin Motor Homes, 153 Ga. App. 704, 707 (2) (266 SE2d 345) (1980). Accordingly, the trial court properly should have prohibited witnesses from testifying as to whether the property was “unique” in this case. See Hawkins v. Hodges, 213 Ga. 837, 841 (2) (102 SE2d 16) (1958).

We do not find that the trial court’s ruling on DOT’s motion in limine constitutes harmful error in this case, however. The trial court instructed the jury that the determination of whether the property was unique was a question solely for their determination. The jury was further instructed that they were not bound to accept the opinions of experts and could disregard them entirely if they wished. In light of the trial court’s charge to the jury, we find the trial court’s ruling on DOT’s motion in limine to be harmless error.

3. DOT further charges that it was error for the trial court to allow Franco’s counsel to propound certain hypothetical questions which assumed that the Franco’s lease did not contain a six-month termination clause. “ ‘Generally, an expert is not permitted to answer a hypothetical question based on facts not placed in evidence.’ Braswell v. Owen of Ga. [Inc.], 128 Ga. App. 528 (1) (197 SE2d 463) (1973); OCGA § 24-9-67.” Stoneridge Properties v. Kuper, 178 Ga. App. 409, 413 (2) (343 SE2d 424) (1986). In this case, however, the trial court instructed the jury before the witness answered the question that “since this property does have [a six-month termination clause], you may entertain the opinion he has of what the value would be without it to test or evaluate the opinion he has given of the property’s leasehold value with this type restriction.” Because the court issued this corrective instruction to the jury, we find that error to be harmless in this case.

4. We will discuss DOT’s enumerations of error 12-26 in Case No. A91A0205 below. We have examined DOT’s remaining enumerations of error and find them to be without merit.

Case No. A91A0205

5. The 15 enumerations of error alleged by DOT in this case are the same as enumerations 12-26 in Case No. A91A0204. These enumerations of error arise from the trial court’s award to Franco’s of “reasonable expenses of litigation including attorney’s fees and expenses incurred in the prosecution of the defense to appeal in this matter” pursuant to OCGA §§ 32-3-7; 32-3-17.1; and 9-15-14. This case presents the novel question to this court of whether a trial court has authority, pursuant to the above cited Code sections, to require the payment of reasonable and necessary attorney fees and expenses of litigation for proceedings before an appellate court of this state. We find that a trial court does not.

OCGA § 32-3-7 provides that before land shall be deemed condemned, the condemning authority must deposit with the court a sum of money estimated to be just compensation for the property or property rights condemned. That statute further provides that “[n]othing in this Code section shall be construed so as to deprive the owner of the property or interest of due process of law as guaranteed by the Constitutions of Georgia and of the United States.” OCGA § 32-3-7 (b). While this statute requires that the condemning authority act within the bounds of due process of law, this statute does not in itself authorize the imposition of attorney fees and expenses of litigation.

The text of OCGA § 32-3-17.1 follows: “All questions of law arising upon the pleadings or in any other way arising from the cause, subsequent to the filing of the declaration of taking and the deposit of the fund, and subsequent to the filing of notice of appeal, if any, shall be passed on by the presiding judge who may, from time to time, make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law. . . .” This statute enables the trial court to hear all questions of law arising in condemnation cases while the trial court has jurisdiction over the case, and cannot authorize the imposition of litigation expenses and attorney fees for proceedings before an appellate court.

OCGA § 9-15-14 provides in pertinent part: “(a) In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. . . . (b) The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. ...”

There are several reasons why the trial court’s imposition of attorney fees and expenses of litigation for proceedings before this court pursuant to OCGA § 9-15-14 were improper. Implicit in the language of OCGA § 9-15-14 is that a court of record of this state may impose reasonable and necessary attorney fees and expenses of litigation for proceedings before that court, which were brought for purposes of harassment or delay or lacked substantial justification. To the extent that the award of attorney fees and expenses of litigation were based on the delay in the filing of the transcript with this court, as the trial court’s order and the transcript of the hearing in the trial court suggest, OCGA § 5-6-48 (c) provides an appropriate remedy to the trial court to address such abuses. Moreover, the trial court lacked jurisdiction over this case during the occurrence of the conduct giving rise to the assessment of attorney fees and expenses of litigation.

Decided July 15, 1991

Reconsideration denied July 30, 1991

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Weiner, Dwyer, Yancey & Mackin, Beryl H. Weiner, Thomas C. Dempsey, John D. Stone, for appellant.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellee.

This court may assess damages and/or penalties for frivolous appeals pursuant to OCGA § 5-6-6 and Rule 26 (b) of the Rules of the Court of Appeals of Georgia. Thus, the appellee, in any case in which the appeal is frivolous, has an adequate remedy available to him. If trial courts are also allowed to assess sanctions against parties for frivolous appeals, an anomalous result might occur in a case in which conduct of a party on appeal would not be sanctioned by the appellate court but would be sanctioned by the trial court upon remand. For all these reasons, we hold that OCGA § 9-15-14 does not authorize the imposition of attorney fees and expenses of litigation for proceedings before an appellate court of this state. Accord Cooter & Gell v. Hartmarx Corp., _ U. S _ (110 SC 2447, 110 LE2d 359) (1990) (holding that Federal Rule of Civil Procedure 11 can only be the basis for sanctions for activities within the context of district court proceedings). Accordingly, the trial court’s order awarding expenses of litigation and attorney fees against DOT for a frivolous appeal to this court must be set aside. For this reason, we will not separately address the 15 enumerations of error arising from that order.

Judgment affirmed in Case No. A91A0204. Judgment reversed in

Case No. A91A0205.

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

       This holding is not inconsistent with our prior decision in Department of Transp. v. Great Southern Enterprises, 137 Ga. App. 710 (225 SE2d 80) (1976). In that case, Great Southern consented to the amount due to the remaining condemnees and urged upon the court a procedure that would not permit the amount of compensation due to the remaining condemnees be relitigated at trial.

       It appears that DOT was not sure whether the trial court’s order assessing attorney fees and expenses of litigation against it was an appealable order. In Haggard v. Bd. of Regents, 257 Ga. 524, 527 (4) (a) (360 SE2d 566) (1987), the Supreme Court held that a “judgment awarding attorney’s fees and costs of litigation pursuant to OCGA § 9-15-14 may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable.”


author: Beasley, Judge.

text:
    A91A0289.
    SUMNER v. FIRST UNION NATIONAL BANK OF GEORGIA.
    (409 SE2d 212)
   Beasley, Judge.

Appellant Benjamin Carmichael Sumner sued the appellee bank and certain of its officers and employees to recover damages for defamation and emotional distress. The complaint alleged that the bank had knowingly caused a false financial report that Sumner’s checking account had been involuntarily closed to be published by Cheque Inquiries, Inc., an out-of-state credit reporting agency also named as a defendant, for the purpose of injuring his personal and business reputation. These charges arose during the pendency of prior litigation between Sumner and the bank’s predecessor, resolved in Savannah Bank & Trust Co. v. Sumner, 174 Ga. App. 229 (329 SE2d 910) (1985).

The bank moved for summary judgment on all claims. It was granted on the issue of defamation because there was no showing of libel per se and Sumner had failed to plead and prove special damages to make out a case of libel. The claim of intentional infliction of emotional distress was reserved for trial by jury. A verdict in favor of the bank was returned and judgment was entered.

Sumner appealed, requesting that nothing be omitted from the record. By amendment he requested the omission of one designated letter, but he later requested that the letter and seven other specified items be included in the appeal record. The bank then filed a designation of addenda to request inclusion of two pretrial orders and certain depositions considered by the trial court in ruling on its motion for summary judgment.

1. Sumner contends that the grant of summary judgment was erroneous because special damages are not necessary to support a claim of libel, and that even if proof of special damage was required, the bank accused him of “kiting” checks and the accusation of criminality is libel per se.

The evidence showed that Sumner’s Mastercard account with the bank became delinquent in 1982 because he was not making adequate payments to keep it current. As required by state and federal banking regulations, the bank routinely charged off his account by transferring it from the credit card department to the recovery department. A charge-off caused by a delinquent credit card debt is normally subject to a credit report but because Sumner had sued the bank and legal proceedings were pending, it was decided to refrain from the usual credit reporting procedures. However, information that the bank had incurred a charged-off loan from Sumner was inadvertently transmitted to Cheque Inquiries and communicated to another bank which rejected Sumner’s application to open a personal checking account.

An allegation that one owes a delinquent debt does not impute that he has committed a crime. Estes v. Sterchi Bros. Stores, 50 Ga. App. 619 (1) (179 SE 222) (1935); Haggard v. Shaw, 100 Ga. App. 813 (1) (112 SE2d 286) (1959). A “business libel” may be actionable because of special damages, although not libelous per se. Weatherholt v. Howard, 143 Ga. 41 (4) (84 SE 119) (1914). It is not necessary to allege special damages to recover in a libel action if it is shown that the plaintiff suffered an injury to his reputation, but “merely to charge one as a delinquent debtor is, as a matter of law, not libelous per se under the provisions of [present OCGA §§ 51-5-1 and 51-5-2].” Floyd v. Atlanta Newspapers, 102 Ga. App. 840, 842 (1) (117 SE2d 906) (1960). “As respects a charge of failure to pay debts, without any imputation of insolvency, it seems to be settled that a writing containing the mere statement that a person who is not a trader or merchant, or engaged in any vocation wherein credit is necessary for the proper and effectual conduct of his business, owes a debt and refuses to pay, or owes a debt which is long past due, is not libelous per se and does not render the author or publisher of such statement liable without proof of special damages.” Mell v. Edge, 68 Ga. App. 314 (2) (22 SE2d 738) (1942).

The partial summary judgment was warranted.

2. Sumner complains that the trial court erred in not submitting to the jury his proposed stipulation of facts concerning the prior litigation. This stipulation was not agreed to by the bank. As Sumner has offered neither authority nor argument to require the presentation to the factfinder of a unilaterally proposed factual stipulation, we find no ground for reversal.

3. Sumner enumerates as error the court’s not striking from evidence a document showing that his first suit was voluntarily dismissed without prejudice, when the court later became aware that counsel at the time of the dismissal had agreed that the fact of dismissal would not be revealed to the jury. No motion to strike was made, and appellant has cited no authority for the proposition that the court was bound, sua sponte, to instruct the jury to disregard the evidence. It was incumbent upon counsel to call this matter to the trial court’s attention and ask for a specific ruling. Barron v. Pacific Employers Ins. Co., 149 Ga. App. 113 (3) (253 SE2d 777) (1979).

In the course of appellant’s argument, he contends that the document was objected to at the time it was offered. However, this was on the ground of relevancy, which was overruled. Where the trial court’s ruling on the objections raised is not enumerated as error on appeal, the reviewing court cannot decide the admissibility of the evidence as against the objections. Department of Transp. v. Bennett, 194 Ga. App. 789 (1) (391 SE2d 724) (1990).

4. Appellant has shown no grounds for reversal in his enumerations complaining that the trial court erred by commenting during a motion hearing outside the presence of the jury that while a witness had used the term “kiting,” she did not understand the meaning of it, and that “kiting” was not an issue at trial. Where no ruling has been made there is nothing for this court to review. See Rowe v. Rowe, 195 Ga. App. 493 (3) (393 SE2d 750) (1990).

5. Appellant challenges the trial court’s failure to rebuke the bank’s attorney for making an allegedly prejudicial remark in closing argument, in violation of OCGA § 9-10-185. The remark was that the lawsuit had been filed before, dismissed, and refiled. There was evidence earlier in the trial, outside the jury’s presence, that defendant’s counsel and plaintiff’s prior counsel had agreed these facts would not be revealed to the jury, but the evidence of the first lawsuit and its dismissal was not objected to on the ground of the agreement, and the trial court had overruled the objection. Consequently, the evidence of the first suit and its dismissal was before the jury at the close of the case, whereas the evidence of the agreement was not before the jury.

The trial transcript shows that no objection was made to defendant’s remark. Even if this omission did not waive the issue as a ground for appeal, it has no merit because the remark was based on the evidence. Dawes Mining Co. v. Callahan, 154 Ga. App. 229, 233 (3) (267 SE2d 830) (1980).

Appellant cites All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 193 (4) (355 SE2d 465) (1987), and Moorehead v. Counts, 130 Ga. App. 453 (203 SE2d 553) (1973), but in those cases appellants had acted promptly in the trial court by moving for mistrial. Here, appellant registered no complaint until appeal.

6. Three enumerations assign error to an order of the trial court allocating costs of supplementing the record on appeal between the parties, an order denying Sumner’s motion to modify or set aside the order allocating costs and certain statements of the trial judge at a hearing held on appellant’s motion for reconsideration of the orders allocating court costs.

The bank has objected to this court’s review of these alleged errors because no notice of appeal was filed from the post-trial orders. Assuming that these subsequent procedural rulings are reviewable under OCGA § 5-6-34 (c), the issue is assigned to the discretion of the trial court. Jones v. Spindel, 239 Ga. 68, 70 (2) (235 SE2d 486) (1977). “[T]he discretion granted the trial court by OCGA § 5-6-41 (f) vests it with ‘a necessary control over the designation and transmittal of both record and transcript.’ [Cits.] The court’s decision in such matters will not be reversed absent a manifest abuse of discretion. ...” Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 311 (7) (381 SE2d 750) (1989). No abuse is shown.

The portions designated by defendant were substantial because they included six depositions and two groups of exhibits as well as two orders. The additional designation was prompted by plaintiffs notice of appeal, which stated that he appealed not only from the final judgment but also from the partial summary judgment for defendant on the issue of libel. (In fact, it was pursued on appeal. See Division 1.) The trial court did not err in concluding that the record upon which the summary judgment was based would be necessary for appellate review, as the obligation of both the trial court and appellate court is to consider the entire record when such a motion is ruled on. OCGA § 9-11-56 (c); Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980); Sacks v. Bell Telephone Laboratories, 149 Ga. App. 799, 800 (1) (256 SE2d 87) (1979).

Decided April 8, 1991

Reconsideration denied July 30, 1991

Elizabeth Pelypenko, for appellant.

Benjamin C. Sumner, pro se.

Kennedy, Lewis, Smart & Brannon, Charles W. Brannon, Jr., Hunter, MacLean, Exley & Dunn, Roland B. Williams, for appellee.

The court’s suggestion, that if plaintiff did not pursue his appeal of the grant of partial summary judgment defendant’s designation at plaintiff’s expense would not be allowed, did not amount to improper judicial coercion in contravention of plaintiff’s right to appeal. Instead, it constituted an effort to resolve realistically by the parties’ compromise the contest over who should pay for the additional record portions. By doing so it clearly pointed out to plaintiff that it was that portion of the appeal which necessitated the addition. When there is a dispute about the record, the trial court is to assure that the record contains all the material “deemed necessary to a decision on the points of error raised by the litigants,” that is, the material necessary for the appellate court to “properly understand [and] pass on his rulings.” G. E. C. Corp. v. Southern Fabricators, 122 Ga. App. 452, 453 (1) (a) (177 SE2d 497) (1970). As indicated in that case, the trial court’s opinion on this matter governs, unless “none of the litigants feel such evidence is necessary in this court.” Id.

Judgment affirmed.

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


text:
    A91A0424.
    FRANKS et al. v. AVILA et al.
    (409 SE2d 564)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case fell and injured his neck during the course of his employment with Carlos Rojas, a stucco subcontractor. The claimant was working at the time on a construction project for which appellant Jay Franks d/b/a Georgia Techniques, Inc., was the general contractor. The administrative law judge found that the immediate employer, Rojas, was primarily liable for payment of workers’ compensation benefits and that appellant Franks, as general contractor, was secondarily liable “in the event that income benefits and medical expenses awarded above are not collectable from Carlos Rojas. . . .’’On appeal, the full board ordered Franks’ workers’ compensation carrier, appellant Aetna Casualty & Surety Company, to begin paying benefits pursuant to OCGA § 34-9-8 (a) because Rojas had no workers’ compensation insurance and had testified during the hearing that he lacked the funds to pay the award. In addition, the board assessed a ten percent penalty and attorney fees against both Rojas and the appellants pursuant to OCGA § 34-9-126 (b), based on Rojas’ failure either to maintain workers’ compensation coverage or to file with the board proof of his financial ability to pay compensation as a self-insurer. The board further ruled that after paying the award Aetna would be entitled to seek reimbursement from Rojas. The superior court affirmed, and we granted the appellants’ application for appeal. Held:

1. The appellants contend that a statutory employer cannot be held liable for benefits pursuant to OCGA § 34-9-8 unless and until the immediate employer’s insolvency has been established by proof both that a judgment has been entered against him for the benefits and that a fi. fa. has been issued on the judgment on which a nulla bona has been entered. This contention is without merit. Pursuant to OCGA § 34-9-8 (a), a general contractor is liable for payment of workers’ compensation benefits to the employee of a subcontractor to the same extent as the subcontractor. “The purpose of [OCGA § 34-9-8] is to ensure that employees in construction and other industries are covered by workers’ compensation. In order to do so, it places an increased burden, in the form of potential liability for workers’ compensation benefits, on the statutory employer. This encourages the statutory employer to require subcontractors to carry workers’ compensation insurance.” Wright Assoc. v. Rieder, 247 Ga. 496, 499-500 (1) (277 SE2d 41) (1981).

In support of their position, the appellants rely on Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550 (80 SE2d 212) (1954), a case in which the claimant had attempted unsuccessfully to collect a judgment for benefits against his immediate employer. However, OCGA § 34-9-8 (a), imposes no such condition but requires only that the claim “be in the first instance presented to and instituted against the immediate employer. . . OCGA § 34-9-8 (c). “[A] liberal construction must be given to effectuate the humane purposes for which the [Workers’ Compensation Act] was enacted.” Schwartz v. Greenbaum, 236 Ga. 476, 477 (1) (224 SE2d 38) (1976). We can conceive of no reason why an admission on the part of the immediate employer that it has not secured workers’ compensation insurance and lacks the financial ability to pay the award should be considered insufficient to impose a burden of payment on the statutory employer. To require the claimant in such a case to obtain a judgment against his immediate employer and to expend resources attempting to collect it in order to establish his right to compensation from the statutory employer would frustrate the remedial purposes of the Act.

2. The appellants complain that they cannot be held responsible for the payment of a ten percent penalty and attorney fees pursuant to OCGA § 34-9-126 (b) based on the failure of the immediate employer to maintain insurance. We agree. OCGA § 34-9-126 (b) specifies that any employer who “refuses or wilfully neglects” to provide evidence of his compliance with the provisions of OCGA § 34-9-121 shall be guilty of a misdemeanor and may be required to pay a penalty in the amount of ten percent of the benefits awarded, plus reasonable attorney fees. “While it has been held that the provisions of the [Workers’ Compensation Act] would be liberally construed in order to effect the beneficent purposes of the Act, the section providing penalties against employers will be strictly construed.” Petty v. Mayor &c. of College Park, 63 Ga. App. 455, 456 (2) (11 SE2d 246) (1940). There is no suggestion that the statutory employer in this case has refused or wilfully neglected to maintain insurance, and we find nothing in the statute which would render him vicariously liable for the immediate employer’s failure in this regard. Therefore, we hold that the superior court erred in affirming this portion of the board’s award against the appellants.

3. The appellants contend that the evidence did hot support the board’s finding as to the amount of the claimant’s average weekly wage. It was stipulated at the commencement of the hearing that the claimant had been earning $6 per hour for a 40-hour week prior to the accident, but that stipulation was later amended to show that he had actually been earning only $5.50 per hour. The appellants now seek to contradict this amended stipulation, contending that it conflicts with Rojas’ testimony on the issue. However, a factual stipulation entered into between the parties in open court is conclusive, even though it conflicts with the evidence in the case. See Food Giant v. Brown, 174 Ga. App. 485, 486 (330 SE2d 183) (1985). Consequently, this enumeration of error is without merit.

Decided July 16, 1991

Reconsideration denied July 30, 1991.

Judith A. Hodges, for appellants.

Coello & Wilder, Bonny Wilder, for appellees.

4. The appellants complain that the board’s finding that the claimant was disabled as a result of a job-related injury is contrary to the evidence. “It is axiomatic that any finding of fact by the board, if supported by any evidence, is conclusive and binding upon the superior court and this court. [Cits.]” Walton County Bd. of Commrs. v. Williams, 171 Ga. App. 779, 780 (320 SE2d 846) (1984). There being some evidence, in the form of medical opinion testimony, to support the board’s finding in this regard, we find this enumeration of error also to be without merit.

Judgment affirmed in part and reversed in part.

Carley and Beasley, JJ., concur.


text:
    A91A0430.
    SCHWARTZ et al. v. BLACK et al.
    (409 SE2d 681)
   Carley, Judge.

The sole issue presented for resolution in the instant appeal concerns a policy of automobile insurance issued pursuant to the Georgia Automobile Insurance Plan (Plan). The trial court held that a policy issued pursuant to the Plan can provide a maximum bodily injury liability limit of $100,000 per person. It is from that order that the instant appeal is taken.

It is generally true that “ ‘[insurance is a matter of contract and it is contract law . . . that is ultimately controlling. [Cit.]’ [Cit.]” MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169,173 (1) (367 SE2d 63) (1988). However, “ ‘[t]he rights of participants in the assigned risk plan for automobile liability insurance are controlled primarily by [OCGA § 40-9-100] and regulations promulgated in implementation thereof.’ [Cit.]” Employers Commercial Union Cos. v. Waldrop, 124 Ga. App. 746, 749 (2) (186 SE2d 134) (1971). “Accordingly, if there be any conflict in [general contract and insurance law] and the specific requirements of the assigned risk plan, the latter requirements are controlling as to an application under the assigned risk plan and a policy of liability insurance issued pursuant thereto.” State Farm &c. Ins. Co. v. Reese, 116 Ga. App. 59, 60 (1) (156 SE2d 529) (1967). “[insurance coverage under the assigned risk plan is not the subject of normal negotiations between contracting parties, but is made effective by operation of law to serve the best interests of the general public. [Cit.]” Rondale Bus Svc. v. American Cas. Co. of Reading, 189 Ga. App. 869, 871 (1) (377 SE2d 726) (1989). Accordingly, the first issue to be resolved is whether the Plan specifies a maximum bodily injury liability limit of only $100,000 per person, for, if it does, then that maximum limit as specified in the Plan is controlling.

“Where an agency or commission is granted the authority and power to adopt. . . rules and regulations within the scope of the legislative enactment, such rules and regulations have the same force and effect as that of a statute. [Cit.]” Panfel v. Boyd, 187 Ga. App. 639, 643 (2b) (371 SE2d 222) (1988). “Accordingly, [in construing the administrative rules and regulations implementing the Plan] we may look to various rules of statutory interpretation. ...” Cross v. Balkcom, 102 Ga. App. 81, 83 (115 SE2d 783) (1960), rev’d on other grounds, 216 Ga. 530 (118 SE2d 185) (1961). See also American Med. Intl. v. Charter Lake Hosp., 186 Ga. App. 204, 207 (2) (366 SE2d 795) (1988). Among those rules of statutory construction is the following: “ ‘Where a particular expression in one part of a statute is not so extensive or large in its import as other expressions in the same statute, it must yield to the larger and more extensive expression, where the latter embodies the real intent of the legislature. . . .’ [Cit.]” Board of Trustees &c. of Atlanta v. Christy, 246 Ga. 553, 555 (1) (272 SE2d 288) (1980). Another rule of statutory construction is that which provides that “ ‘[w]here there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.’ . . . ‘The rule of construction applicable to all writings ... is this: that general and unlimited terms are restrained and limited by particular recitals, when used in connection with them.’ [Cit.]” Mayor &c. of Savannah v. Savannah Elec. &c. Co., 205 Ga. 429, 436-437 (54 SE2d 260) (1949).

Application of these and other pertinent rules of statutory construction to the administrative rules and regulations implementing the Plan demonstrates that the trial court correctly ruled that a policy issued pursuant to the Plan can provide a maximum bodily injury liability limit of $100,000 per person. Any other provisions which may arguably relate generally to the issue of the limit of such coverage must yield to Section 10 (A) (2) (c) (1) of the Plan, which provides specifically that “[a]n insured assigned under the Plan may, at his option, also purchase additional coverage to be written in the same policy as liability coverage for liability limits . . . up to $100,000/ 300,000 Bodily Injury. . . .” (Emphasis supplied.) Since the Plan itself provides a maximum bodily injury liability limit of $100,000, reliance upon principles of general contract and insurance law to assert a greater limit in the instant case is unavailing. “[I]f there be any conflict in [general contract or insurance law] and the specific requirements of the assigned risk plan, the latter requirements are controlling as to an application under the assigned risk plan and a policy of liability insurance issued pursuant thereto.” State Farm &c. Ins. Co. v. Reese, supra at 60 (1).

Decided July 16, 1991

Reconsideration denied July 30, 1991

William Q. Bird, P.C., William Q. Bird, Edward R. Still, for appellants.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., for appellees.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0509.
    CHO et al. v. SOUTH ATLANTA ASSOCIATES, LTD.
    (409 SE2d 674)
   McMurray, Presiding Judge.

South Atlanta Associates, Ltd. (plaintiff) brought an action against Myeng K. Cho, Hong Yul Ryu and Nack Y. Paek d/b/a Crystal Cleaners (defendants) alleging that defendants breached a three-year shopping center lease by failing to pay rent, taxes, late fees, common area maintenance fees and water and utility expenses. Defendants admitted that they entered into a three-year lease with defendant for shopping center space, but claimed set-off and alleged that plaintiff “retained equipment and personal property belonging to the Defendants of a value equal to or in excess of the claims of the Plaintiff, and that Plaintiff’s retention of such equipment and personal property has fully discharged Defendants.” Plaintiff moved for summary judgment. The following evidence is undisputed:

Defendants entered into a three-year lease with plaintiff for shopping center space (“the premises”) and defendants gave plaintiff a $1,500 security deposit and agreed to pay minimum monthly rental installments of $1,360, beginning January 1, 1985. Defendants also agreed to pay water and utility fees and a proportionate share of taxes and common area maintenance expenses.

In January or February 1985, defendants began operating a dry cleaning business on the premises, but later decided to close the business. In February of 1986, defendants attempted to remove equipment from the premises by removing the storefront, but they did not have plaintiff’s permission and plaintiff obtained a temporary restraining order preventing defendants “from removing the dry cleaning equipment and other fixtures in the premises ... or from removing the storefront or damaging the premises in any way for a period of thirty days from [February 14, 1986].”

Defendant later removed all equipment that would pass through the doors of the premises. They left large items of equipment which could be moved only after removal of the storefront. Defendants vacated the premises and stopped paying their obligations under the lease on May 1, 1986.

In a letter dated June 11, 1986, plaintiff notified defendant Nack Y. Paek that “you are still fully obligated to pay minimum rent and expenses as defined in [the] Lease Agreement, per month, until such time as the Premises is released.” Defendants did not honor their obligations under the lease and, on October 9, 1986, plaintiff leased the premises to another tenant.

The trial court granted summary judgment to plaintiff based on evidence of damages from the affidavit of an agent in charge of plaintiff’s “ledgers.” This appeal followed. Held:

1. Defendants contend the trial court erred in granting summary judgment to plaintiff, arguing that genuine issues of material fact remain as to set-off for the equipment defendants left on the premises.

“ ‘A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.’ Finch v. City of Atlanta, 232 Ga. 415, 416 (207 SE2d 46) (1974). See generally OCGA § 9-11-56 (c); Sanders v. Colwell, 248 Ga. 376 (2) (283 SE2d 461) (1981).” McGivern v. First Capital &c. Properties, 188 Ga. App. 716, 717 (1) (373 SE2d 817).

In the case sub judice, the lease provides that “[u]pon the occurrence of an event of default by Tenant, Landlord may . . . enter upon the Demised Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated on the premises without liability for trespass or conversion, and sell the same with or without notice at public or private sale, with or without having such property at the sale, at which Landlord or its assigns may purchase, and apply the proceeds thereof, less any and all expenses connected with the taking of possession and sale of the property, as a credit against any sums due by Tenant to Landlord. Any surplus shall be paid to Tenant and Tenant agrees to pay any deficiency forthwith.”

There is no conclusive evidence regarding the disposition of the equipment left by defendants on the leased premises and the trial court did not credit defendants with any amount for the sale of said equipment. Consequently, genuine issues of material fact remain as to the disposition of said equipment, i.e., whether the equipment was sold, abandoned or stored. It follows that genuine issues of material fact may also exist as to the amount, if any, defendants are entitled to receive as surplus from the sale of the equipment or as a credit against unpaid lease obligations. The trial court erred in granting plaintiff’s motion for summary judgment.

2. Defendants contend the trial court erred in granting summary judgment to plaintiff and “improperly [holding defendants] liable for rent accruing after [plaintiff] terminated [defendants’] liability by retaking possession and reletting the premises.” Defendants argue that there is evidence that plaintiff “elected to terminate the Lease, and [defendants’] liability, upon releasing the premises to [another tenant].”

“As a general rule, ‘a party to a contract may not waive stipulations in favor of the other party, or rights to which the other party is entitled. . . .’ 17A CJS, Contracts, § 491a. However, such provisions may be waived by the conduct of both parties intended to result in the ‘mutual disregard’ of, or ‘mutual departure’ from the contract terms. See generally OCGA § 13-4-4; Southern Feed Stores v. Sanders, 193 Ga. 884 (3) (20 SE2d 413); Bearden Mercantile Co. v. Madison Oil Co., 128 Ga. 695 (4) (58 SE 200); Prudential Ins. Co. v. Nessmith, 174 Ga. App. 39 (329 SE2d 249); Crawford v. First Nat. Bank &c., 137 Ga. App. 294, 295 (223 SE2d 488). The question [of] whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury. Southern Feed Stores, supra at 877; Crawford, supra at 295. It is equally well recognized that a party to a contract ‘may waive contractual provisions for his benefit.’ 17A CJS, supra; see Storey v. Austin, 221 Ga. 692 (1) (146 SE2d 728); C.P.D. Chem. Co. v. Nat. Car Rental &c., 148 Ga. App. 756 (1) (252 SE2d 665).” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (3), 257 (381 SE2d 322).

In the case sub judice, defendants vacated the leased premises and plaintiff notified defendant Nack Y. Paek that “you are still fully obligated to pay minimum rent and expenses as defined in [the] Lease Agreement, per month, until such time as the Premises is released.” (Emphasis supplied.) This evidence raises genuine issues of material fact regarding any agreement that defendants would be released from obligations under the lease after the premises “is released.” See Oxford Motors Co. v. Niblack, 183 Ga. App. 771, 772 (360 SE2d 23). Consequently, it was error to grant summary judgment to plaintiff.

3. Defendants contend the trial court erred in failing to reduce the amount owed to plaintiff by the $1,500 security deposit. We agree. The lease specifically provides that the security deposit will be applied to “cure any default of Tenant.”

Decided July 15, 1991

Reconsideration denied July 30, 1991

Furman Smith, Jr., for appellants.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, L. Katherine Adams, for appellee.

4. It is unnecessary to consider defendants’ remaining enumerations of error.

Judgment reversed.

Sognier, C. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I concur in Divisions 1 and 3, and in the judgment, but disagree with the conclusion reached in Division 2.

The majority holds that a question of fact exists as to whether the plaintiff (landlord) elected to terminate the defendants’ (tenant) obligation to pay further rent after the premises was re-leased to another tenant. After the defendants vacated the premises and defaulted on the lease, plaintiff advised defendants by letter that, as requested, a sign would be placed in the window of the premises in an effort to locate another tenant. The letter continued by adding: “However, please be advised that you are still fully obligated to pay minimum rent and expenses as defined in your Lease Agreement, per month, until such time as the Premises is released.”

The lease provides that in the event of the defendants’ default, plaintiff has the option, without notice, to take possession of the premises, relet it to another tenant, and demand that defendants pay any deficiency between the rent owed by defendants under the lease and the rent paid by the new tenant. By stating that upon re-leasing to another tenant, defendants will no longer be fully obligated to pay the minimum rent due, the letter simply recognizes the provision in the lease that the rent due from defendants would be reduced by the amount of rent paid by a new tenant. I do not find the language in the letter to be ambiguous or inconsistent with the provisions of the lease holding the defendants liable for any remaining deficiency after re-leasing. See Reahard v. Ivester, 188 Ga. App. 17, 19 (371 SE2d 905) (1988) (letter restated clear and unambiguous terms of lease agreement).

The trial court properly concluded, as a matter of law, that the letter evinced no intention on the part of plaintiff to terminate the defendants’ obligations under the lease. Id.