text:
    A92A1352.
    HOFFMAN et al. v. ATLANTA GAS LIGHT COMPANY et al.
    (426 SE2d 387)
   Birdsong, Presiding Judge.

Appellants Peter F. Hoffman et al. own property in Troup County on which a predecessor gave an easement and right-of-way to Plantation Pipeline Company (Plantation). From 1941 to 1970, Plantation installed a four-inch pipeline extending from Macon to LaGrange for transportation of petroleum products. This pipeline by virtue of the easement goes through appellants’ property. Appellants bought this property in April 1984. This suit was filed alleging that from 1954 to 1956, four leaks occurred, spilling about 1,000 barrels (42,000 gallons) of petroleum products into the soil and groundwater of this property; the contamination on the property is gasoline, kerosene or other products. In December 1970, Plantation sold and assigned the pipeline and easement rights to Atlanta Gas Light Company. Appellants say Plantation admits the presence of hazardous chemicals in the spills; that it is undisputed that the contamination can be removed; and that it is undisputed that as the contamination migrates outward from the pipeline, the expense of removing the contamination increases.

Plantation and Atlanta Gas Light contend they were informed by appellants of the contamination in 1988. In March 1990, appellants formally demanded that Plantation and Atlanta Gas Light remove the contamination from the property, but this demand was refused and suit was filed August 29, 1990, alleging, inter alia, that Atlanta Gas Light conducted tests in 1981 which revealed holes in the pipeline but never informed appellants, that the leaks were discovered in 1988 when prospective purchasers conducted environmental tests, and that the contaminants continue to spread throughout the property so that it is unmarketable because of hydrocarbon contamination. Appellants in Count I sought an injunction against the present owner of the pipeline, Atlanta Gas Light; they alleged creation and maintenance of nuisance against Plantation and Atlanta Gas Light (Count II); they alleged trespass against Plantation on account of the presence of Plantation’s contaminants (Count III); they alleged breach of an instrument under seal by both defendants (Counts IV and V); they alleged fraud of both defendants for failure to reveal the leaks and contamination to appellants (Count VI and VII); and they sought punitive damages against both defendants for knowing and wilful failure to maintain the pipeline and to remove contamination after demand.

The trial court granted summary judgment to defendants on all counts, hence this appeal. Held:

1. “ ‘Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).’ [Cit.] ‘(T)he evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of his case.’ ” (Emphasis supplied.) Southern States Landfill v. Walton County, 259 Ga. 673, 674-675 (386 SE2d 358). “ ‘On motion for summary judgment, the burden of showing the absence of any genuine issue of material fact rests upon movant, and the party opposing the motion is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the proof offered.’ ” Ingram v. JIK Realty Co., 199 Ga. App. 335, 336 (404 SE2d 802). The burden of establishing the non-existence of any genuine issue of fact is upon Plantation and Atlanta Gas Light as movants for summary judgment, and all doubts are resolved against them. Grossberg v. Judson Gilmore Assoc., 196 Ga. App. 107, 109 (395 SE2d 592).

To prevail on a motion for summary judgment, defendants Plantation and Atlanta Gas Light must pierce the allegations of appellants’ complaint and establish as a matter of law that appellants could not recover under any theory fairly drawn from the pleadings and the evidence. Proctor & Gamble Paper Products Co. v. Yeargin Constr. Co., 196 Ga. App. 216, 217-218 (396 SE2d 38). The grant of summary judgment operates, at the instance of the trial court, to remove from the jury an issue or all the issues, as the case may be, and it removes from the parties the right to have the issues determined by a jury; therefore, the ruling of the trial court granting summary judgment is not afforded any presumption of correctness or any more favorable interpretation of the evidence or the law. The rules applying to rulings on motion for summary judgment are not indulged with a view to sustain the ruling of the trial court. Rather, on appeals from grants of summary judgment, it is this court’s function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains (Lewis v. Rickenbaker, 174 Ga. App. 371 (330 SE2d 140)), and if the record does not support a conclusion not only that no genuine issue of material fact remains but also that the movant is entitled to judgment as a matter of law, the judgment must be reversed for trial. Id.; OCGA § 9-11-56 (c).

Plantation Pipeline contends the statute of limitation governing the trespass and nuisance claims expired in 1960, four years after the last leak from the pipeline relative to appellants’ property; that the alleged contamination does not constitute a continuing nuisance or trespass; that Plantation transferred its easement rights and obligations to Atlanta Gas Light in 1970 and has had no legal interest or control over the pipeline as to that property since that time; that any claims arising as a result of leaks from the pipeline were barred by the time appellants bought the property in 1984; and that Plantation did not breach the easement agreement but fulfilled all its duties thereunder. Plantation shows that when it transferred its interests to Atlanta Gas Light in 1970, all petroleum products were purged from the pipeline and it was filled with water and rust inhibitor as was the practice, and no leaks were evident during Atlanta Gas Light’s ownership of it, inasmuch as no leaks occurred after 1956. Plantation asserts appellants confuse continuous or regularly repetitious acts or conditions (leaks) with the hurt, inconvenience or injury (contamination), and that appellants fail to realize the distinction between past and completed acts and continuing and recurrent acts. In other words, Plantation says appellants confuse the “acts” with the “results,” and that the last “acts” (leaks) occurred in 1956.

Appellants allege that four leaks formed in the pipeline from 1954 to 1956, and that although the leaks were repaired the contamination is continuing and although it could be abated by defendants, it remains unabated. Appellants insist that it is not the pipeline or the leaks which constitute a nuisance and continuing trespass, but the hydrocarbon contamination. The reasonable inference drawn in favor of appellants, as respondents to motion for summary judgment, is that Plantation fixed the leaks but failed to remove the contamination which has exuded and continues to exude throughout the property.

We conclude it is the appellees who are confused as to what the nuisance is in this case. The old holes in this pipeline are not the nuisance; the nuisance is the continuing exudation and leaching of chemicals into the ground from the contaminants deposited long ago through the leaks.

The question in this case does not revolve around what day the holes appeared in the pipe or what day they were fixed. The question is whether the contaminating hydrocarbon pollution which began in 1956 is a continuing nuisance or a permanent nuisance. Appellees contend this is a “completed act” and it is too late for appellants to get redress. But, appellants say the contamination is spreading. If that is so, the contamination is not a “completed act.” According to the Supreme Court in Goble v. Louisville &c. R. Co., 187 Ga. 243, 249 (3) (200 SE 259), “every continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new action will lie. Consequently . . . suit may be maintained for damages growing out of a nuisance of the character indicated, where the damages . . . were inflicted within four years before the time of filing suit, though the act which originally caused the nuisance was not done within the period of limitation of the action. Danielly v. Cheeves, 94 Ga. 263 (2) (21 S.E. 524); City Council of Augusta v. Marks, 124 Ga. 365 (2) (52 S.E. 539), and cit.; Gabbet v. Atlanta, 137 Ga. 180, 183 (73 S.E. 372), and cit.” (Emphasis supplied.) See also Scott v. Dudley, 214 Ga. 565 (105 SE2d 752); Harbuck v. Richland Box Co., 204 Ga. 352 (49 SE2d 883). This statement of the law in 1938, as to the damming of a creek by a railroad trestle, is even more applicable to chemical pollution in 1992, as to which the contamination, that is, the nuisance, first unleashed through a leak in about 1956, and being buried in the ground since then, was not discovered until 1988. The nuisance in this case is the continuing contamination, not the old leaks. The damage was not complete upon the completion of the creation of the leaks, so appellants are not limited to a cause of action filed within the period of limitations following creation of the leaks or the repairing of the leaks. The “damages growing out of [the] nuisance” (Goble, supra at 249) are the continuing “hurt, inconvenience, or damage” caused by the hydrocarbon contamination, for which OCGA § 41-1-1 gives a cause of action, and which were not assuaged by Plantation’s sale of the pipeline to another. Appellants say there is evidence the hydrocarbon contamination caused and maintained by Plantation continues and has “inflicted [damages] within four years before the time of filing suit, though the act which originally caused the nuisance was not done within the period of limitation of the action.” Goble, supra at 249. If that is so, appellants may maintain the cause of action for the continuing nuisance as well as for the continuing trespass. Id. at 246; see Jillson v. Barton, 139 Ga. App. 767 (229 SE2d 476).

The grant of summary judgment to Plantation as to the counts for nuisance and trespass was error.

2. As to Atlanta Gas Light’s contention that it did not cause the leaks or the hydrocarbon contamination, the case is slightly different. Atlanta Gas Light contends there is no evidence of any leaks since 1956; that before it acquired the pipeline, the pipeline was purged with water; that Atlanta Gas Light has never used the segment of pipeline crossing over this property and has never transported gasoline, kerosene or other refined petroleum products through the pipeline and that the contamination on the property consists of gasoline, kerosene and other refined petroleum products; and that Atlanta Gas Light had no knowledge of the presence of hydrocarbons on the property until so informed by appellants in 1989, and made no statements concerning the pipeline, the property or contaminants and never deceived appellants. Atlanta Gas Light contends that there is no causal connection between itself and the alleged harm.

Accepting arguendo that Atlanta Gas Light did not cause the hydrocarbon contamination, nevertheless Atlanta Gas Light now holds and controls the easement and the pipeline which are the physical source of the contamination on appellants’ property. There is a distinction between creating a nuisance and maintaining a nuisance. OCGA § 41-1-5 provides: “(a) The alienee of a person owning property injured may maintain an action for continuance of the nuisance for which the alienee of the property causing the nuisance is responsible. (b) Prior to commencement of an action by the alienee of the property injured against the alienee of the property causing the nuisance, there must be a request to abate the nuisance.” (Emphasis supplied.) The principle on which one is charged as a continuing wrongdoer is that he is under a legal duty to terminate the cause of the injury. Keener v. Addis, 61 Ga. App. 40 (5 SE2d 695). The question before the jury will be whether Atlanta Gas Light has maintained a continuing nuisance such as to be responsible for the resulting harm. Id. We will not hold that the alienee of the easement and pipeline has no legal duty to abate a continuing nuisance, particularly under the easement agreement in effect between Atlanta Gas Light and appellants.

Atlanta Gas Light is not insulated from responsibility for the maintenance of a continuing nuisance merely by the fact that it did not create the contamination and had no “causal” relation to the contamination as it was first created. Under OCGA § 41-1-5, “maintenance” of a nuisance is the failure to abate the nuisance after notice by the injured party. Notice to an alienee that he will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate. Central of Ga. R. Co. v. Americus Constr. Co., 133 Ga. 392 (65 SE 855); Central R. v. English, 73 Ga. 366. The continuance of the nuisance constitutes a cause of action (Phinizy v. City Council of Augusta, 47 Ga. 260, 266-267; see Bonner v. Welborn, 7 Ga. 296, 297); the maintenance of the nuisance after notice is continuance of the nuisance, and the alienee of the property causing the nuisance is responsible for that continuance, if there is a request for abatement before action is filed. Felker v. Calhoun, 64 Ga. 515. The alienee may not be responsible for maintaining the nuisance if he is not given notice. Georgia Power Co. v. Moore, 47 Ga. App. 411 (170 SE 520); see Georgia Power Co. v. Fincher, 46 Ga. App. 524 (168 SE 109). The grant of summary judgment to appellee Atlanta Gas Light as to Count II for maintenance of a nuisance was error.

Decided November 24, 1992 —

Reconsideration denied December 15, 1992

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, for appellants.

Long, Aldridge & Norman, Edward A. Kazmarek, Carol R. Geiger, Mary D. Peters, Hunton & Williams, Kurtis A. Powell, Edward T. Floyd, for appellees.

3. As to the question of the breach of the easement agreement as an instrument under seal, appellants contend that the easement agreement under which Plantation acquired the easement has been in effect continuously since inception in 1941, and that it guarantees to appellants the right “to fully use and enjoy” the property, which they cannot do until and unless the contamination is abated. Continuing breach of the easement agreement by Plantation and Atlanta Gas Light is a jury question in this case.

4. Appellees were not entitled to summary judgment on the question of concealment of the existence of the contamination from appellants, as alleged in the fraud counts.

5. -It follows from all we have said here, and the reversal of the grants of summary judgment, that summary judgment to appellees as to Count I was improperly granted, and that appellants may recover punitive damages on the counts proved as provided by law.

Judgment reversed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1362.
    THE STATE v. SALLIE.
    (427 SE2d 11)
   Birdsong, Presiding Judge.

This is an appeal by the state of the order of the superior court granting appellee’s plea of former jeopardy.

William G. Sallie was prosecuted and convicted in Bacon County for murder, burglary, aggravated assault, and two counts of kidnapping with bodily injury. The charges arose from a spree in which Sallie murdered his former father-in-law, shot his former mother-in-law after handcuffing her to her grandson, and kidnapped his former wife and former sister-in-law. He then abducted his former wife and former sister-in-law to Liberty County, and repeatedly raped and sodomized his former wife and repeatedly raped his former sister-in-law. After his Bacon County convictions for murder, aggravated assault, burglary, and kidnapping with bodily injury, Liberty County sought to prosecute Sallie for rape and sodomy.

The Bacon County indictment contains the following pertinent averments as to each of the counts of kidnapping with bodily injury, respectively: “and cause said person to receive bodily injury to wit: handcuffed and bound [his former sister-in-law] injuring her arms and wrists then raped her”; “and cause said person to receive bodily injury, to-wit: handcuffed and bound [his former wife] injuring her arms and wrists then raped and sodomized her.” The Bacon County trial transcript establishes that testimony was taken regarding the repeated rape by appellee of his former wife and former sister-in-law and of his act of oral sodomy upon his former wife. Regarding being repeatedly raped, the former wife also testified: “I don’t know exactly how many times he did what he did. But it didn’t stop with just once.” The former sister-in-law also testified that appellee raped her more than once.

The trial court granted Sallie’s plea of former jeopardy which he made on grounds the rape and aggravated sodomy in Liberty County were the “bodily injury” of the kidnapping charges for which he was convicted in Bacon County, and also that “the finding of guilt of the kidnapping with bodily injury was founded upon the same facts . . . upon which the present indictment for rape and aggravated sodomy is framed.” (Emphasis supplied.) Held:

Appellee’s brief in support of this motion cites Fredrick v. State, 181 Ga. App. 600 (353 SE2d 41), which pertinently concerned the application of the statutory provisions of OCGA § 16-1-6 (1) and concluded that under the attendant circumstances, the kidnapping offense at issue was included within the aggravated sodomy offense as a matter of fact. At the hearing on defendant’s plea of former jeopardy, the defense asserted inter alia that the charges in Liberty County involve the same “facts and everything” as were involved in the kidnapping with bodily injury charge for which appellee was convicted in Bacon County. The multiple prosecution provisions of OCGA § 16-1-7 were expressly called to the trial court’s attention by the state, and the trial court considered both OCGA § 16-1-7 and the related lesser included offense provisions of OCGA § 16-1-6 (1). Thereafter, the trial court quoted from a selected portion of Fredrick, supra at 602 (2). Further, in its order granting appellee’s plea of former jeopardy, the trial court concluded inter alia that “the elements of the bodily injury which allows a court to sentence a defendant to life imprisonment are the same evidence used to establish the aggravated sodomy and the rape offense for which [appellee] is indicted in Liberty County and a trial on the offenses separately would be double jeopardy.” (Emphasis supplied). In support of this holding, the trial court cited in addition to Fredrick, supra, various federal cases. Thus, it is apparent that the statutory provisions of double jeopardy, which include a prohibition against certain multiple punishment, were litigated before the trial court and also found to have been violated, because the same evidence, that is, the same facts, were used. See generally OCGA §§ 16-1-6 (1) and 16-1-7 (a) (1).

If the trial court correctly granted appellee’s double jeopardy claims either on the basis of the state statutory claim or on the basis of a federal double jeopardy claim, this court would have to uphold the ruling, because the state statute affords double jeopardy protection independent of that provided by the federal double jeopardy clause. (Compare State v. Estevez, 232 Ga. 316 (206 SE2d 475) and State v. Evans, 192 Ga. App. 216, 220 (384 SE2d 404, recognizing inter alia the substantive aspect of the independent statutory double jeopardy provisions of OCGA § 16-1-7 (a) (1).)

In regard to the substantive prohibition of OCGA § 16-1-7 (a) (1), the Criminal Code provides alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law so as to bar conviction and punishment for more than one crime. Evans, supra at 220-221. One of these alternatives “ ‘provides that the accused may be prosecuted for but may not be convicted of more than one crime if: “One crime is included in the other.” [Cits.] A crime is included in the other when “(a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” ’ ” Id. at 220. That portion of OCGA § 16-1-6 (1) pertaining to a proof of the same facts test is but a variant application of the “uses up all the evidence” test, cited in Fredrick, supra at 602 (2) and established in Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) when interpreting Code Ann. § 26-505 (a), the predecessor statute to OCGA § 16-1-6, to determine if a former crime is included in the latter as a matter of fact.

Haynes, supra, adopted the test articulated in a concurring opinion by Justice Marshall in Stephens v. Hopper, 241 Ga. 596, 605 (247 SE2d 92). Marshall referred to it as the “actual evidence” test. The court in Haynes applied the test and held that “under the facts of this case, the crime of armed robbery was a lesser included offense in the crime of kidnapping for ransom and that the two crimes merged, so that the conviction and sentence for armed robbery must be set aside.” (Emphasis supplied.) Haynes v. State, supra at 120-121. OCGA § 16-1-7 (a) prohibited what had been done. Under the facts before it, the court in Fredrick held that the kidnapping offense was included within the aggravated sodomy offense as a matter of fact and reversed the conviction of kidnapping.

In addition to Fredrick, supra, appellee cites Allen v. State, 233 Ga. 200 (210 SE2d 680). The court there held that defendant could be convicted and sentenced for kidnapping and rape because, although the rape arose out of the same transaction, it was a separate offense since he had not been indicted, convicted, and sentenced for kidnapping with bodily injury and rape. Had that been the case, the court said it would have run afoul of Code Ann. § 26-506, now OCGA § 16-1-7. In Allen, the court cited Henderson v. State, 227 Ga. 68 (179 SE2d 76). In that case, the trial court struck the rape count on defendant’s motion before trial, apparently because the indictment charged kidnapping with bodily injury, to-wit, rape. That is what the court below has correctly done in Sallie’s case.

Potts v. State, 261 Ga. 716 (410 SE2d 89) is not controlling, as to the issue of the granting of a motion for plea of double jeopardy grounded upon an application of the statutory rights promulgated in OCGA §§ 16-1-6 and 16-1-7. Potts, citing and construing Grady v. Corbin, 495 U. S. 508 (110 SC 2084, 109 LE2d 548), undertook to clarify the test applying to the double jeopardy clause of the Fifth Amendment applicable to the states through the Fourteenth Amendment, and left totally intact all prior precedent pertaining to the independent and more expansive double jeopardy protection provisions promulgated in state statute. In Potts, the Georgia Supreme Court points out that Grady “explicitly rejects an ‘actual evidence’ or ‘same evidence’ test.” Id. at 718. But the “actual evidence” test is the one to be applied with respect to OCGA § 16-1-6 (1) and it is the one we must apply to determine if the trial court erred in granting appellee’s motion on statutory due process grounds. Moreover, Potts does not change the rule adopted in Haynes and applied by this court in numerous cases since. See, e.g., Morris v. State, 179 Ga. App. 228, 229 (6) (345 SE2d 686).

In proving that the persons kidnapped in the Bacon County case received bodily injury so as to subject defendant to the greater punishment of life imprisonment, the state used all the evidence of the rapes and sodomy which it now wishes to prosecute. Any one of them with respect to each victim would have been sufficient to establish the factor which authorized the enhanced punishment if the Bacon County indictment had not been drafted to embrace them all without distinction; and drafted, we note, either with or without due consideration of the possibility of a bar to subsequent prosecution in Liberty County. The life sentences imposed in Bacon County constituted punishment for these offenses, whereas without the evidence of “bodily injury,” defendant would have been subjected to a maximum of 20 years imprisonment. OCGA § 16-5-40 (b).

Decided November 24, 1992 —

Reconsideration denied December 15, 1992

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellant.

John E. Pirkle, for appellee.

That the venue of the sex offenses was with another county does not vitiate this result, as it is the state, the single sovereign, which is prohibited from double conviction and sentence. OCGA § 16-1-7 (a). Thus it behooves prosecutors in such cases to coordinate local prosecutorial efforts with prosecutors of other counties to best protect the interests of the citizens of Georgia and to insure that an accused’s right to fundamental fairness within the judicial system is not abused.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Pope, Judge. Carley, Presiding Judge,

text:
    A92A0780.
    CLEMENTS et al. v. FLEET FINANCE, INC.
    (426 SE2d 910)
   Pope, Judge.

Plaintiff/appellee Fleet Finance, Inc. filed an action against defendants/appellants Michael Clements and Mrs. Joseph M. Clements to collect on a promissory note in the sum of $103,682.36 which was partially secured by second mortgages on two lots in a Coweta County development known as Hamilton Plantation and by the personal guaranty of both defendants. Summary judgment was granted to plaintiff, and defendants appeal. Before this action was commenced, the lots which secured the note had already been sold by plaintiff pursuant to the power-of-sale clause contained in the first mortgage on the lots which was held by plaintiff. The sole issue on appeal is whether plaintiff was barred from suing on the note because the action is, in effect, an attempt to collect a deficiency judgment without obtaining a judicial confirmation of the prior sale of the property.

The facts of the case involve several different secured transactions. First, in 1986, defendant Michael Clements executed a purchase money promissory note and security deed in favor of First Georgia Savings Bank (“First Georgia”) in the amount of $402,000 in regard to a parcel of land on Sea Island, Georgia. In 1987, Mr. Clements obtained a commercial loan from First Georgia in the amount of $112,650 in exchange for which he executed a security deed on each of two lots in a development known as Hamilton Plantation. In March 1989, Mr. Clements executed the promissory note at issue in this appeal, borrowing $103,682.36 from plaintiff to pay off the arrearage on the mortgage to First Georgia on the Sea Island Property. As set forth above, the note was secured by second mortgages on the Hamilton Plantation lots as well as defendants’ personal guarantees.

Mr. Clements apparently again fell into arrears on his notes to First Georgia and plaintiff was concerned about its collateral position as the second mortgagee of the Hamilton Plantation lots. Thus, on September 29, 1989, plaintiff cured the default on the notes to First Georgia (the purchase money promissory note on the Sea Island property and the 1987 commercial loan) and took an assignment of the bank’s interest in the Sea Island property and the first mortgages on the Hamilton Plantation lots which secured the notes. Consequently, plaintiff held both a first and second priority position on the Hamilton Plantation lots. Plaintiff then initiated foreclosure under the power of sale provision in the first priority security deeds on the lots assigned to plaintiff by First Georgia. Thereafter, the suit at issue in this appeal was filed to collect on the note secured by the second priority security deeds on the lots.

Citing C. K. C., Inc. v. Free, 196 Ga. App. 280 (2) (395 SE2d 666) (1990), defendants argue that a lender who holds two notes secured by the same property and forecloses on one note without confirming the foreclosure sale pursuant to OCGA § 44-14-161 is barred from suing on the other note because such a suit constitutes the pursuit of a deficiency judgment which cannot be obtained absent judicial confirmation. The confirmation requirement of OCGA § 44-14-161 does not apply to the case at hand, however, and the facts of C. K. C., Inc. are materially distinguishable.

Pursuant to the terms of OCGA § 44-14-161 (a), when a creditor sells real estate pursuant to the foreclosure powers contained in the security deed, confirmation of the sale is required to obtain a deficiency judgment when the sale “does not bring the amount of the debt secured by the deed. . . .” In the case at hand, plaintiff is not seeking a deficiency judgment on the debt secured by the first deeds to secure debt pursuant to which the foreclosure sale was conducted. Instead, plaintiff seeks to collect on a totally separate debt, i.e., the note secured by the second priority security deeds. Thus, confirmation of the foreclosure sale is not required in order to collect on the note at issue in this case.

The two notes at issue in C. K. C., Inc. were both purchase money promissory notes executed at the same time and secured by a single deed to secure debt on the property purchased. Thus, quoting Murray v. Hasty, 132 Ga. App. 125, 127 (1) (207 SE2d 602) (1974), this court concluded the two notes were “ ‘inextricably intertwined’ ” and “ ‘not independent of each other. . . .’ ” C. K. C., Inc., 196 Ga. App. at 283. Even though the purchase money loan had been broken into two separate notes, there was but one debt which was secured by one security deed. In the case now before us, however, in regard to each of the two lots, there are two separate debts evidenced by two separate notes and secured by two separate security deeds. The notes were made at different times, to different creditors and for different collateral purposes. The debt secured by the first priority security deeds granted to the bank, and later assigned to the plaintiff, was unrelated to the debt secured by the second priority security deeds granted directly to the plaintiff. Thus, the instant suit to recover on the debt secured by the second security deeds is unrelated to the debt which was secured by the first security deeds which were foreclosed upon and the suit “cannot be deemed an action for a deficiency judgment as to the debt secured by the first deed.” Kennedy v. Trust Co. Bank, 160 Ga. App. 733, 736 (288 SE2d 87) (1981).

“Black’s Law Dictionary defines deficiency as ‘that part of a debt secured by mortgage not realized from sale of mortgaged property,’ . . . .” Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1 (2) (147 SE2d 31) (1966). The debt at issue in this case is not the deficiency remaining from the foreclosure sale on the first deeds to secure debt but is a totally separate debt. Foreclosure under the first security deeds served to extinguish the second security deeds and to render the debt which had been secured thereunder an unsecured obligation. Nevertheless, foreclosure under the first security deeds did not extinguish the debt which was secured by the second security deeds. “The note sued upon is a separate transaction from that which was the basis for foreclosure, is not within the prohibition of [OCGA § 44-14-161], and [plaintiff Fleet Finance, Inc.] was not barred from bringing action thereon.” Vaughn & Co. v. Saul, 143 Ga. App. 74, 77 (1) (237 SE2d 622) (1977).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur specially.

Carley, Presiding Judge,

concurring specially.

I concur in the majority’s affirmance of the grant of summary judgment in favor of appellee-plaintiff. However, my analysis of the instant case differs somewhat from that advanced by the majority. Accordingly, I must concur specially.

OCGA § 44-14-161 (a) provides, in relevant part, as follows: “When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds . . . and at the sale the real estate does not bring the amount of the debt secured by the deed ... , no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale ... for confirmation and approval and shall obtain an order of confirmation and approval thereon.” (Emphasis supplied.) Accordingly, unless the “debt” which was secured by the second security deed was somehow included or includable in the “debt” which was secured by the first security deed, appellee’s failure to obtain confirmation of the foreclosure sale under the first security deed would not provide appellant-defendants with a defense to appellee’s instant action on the note evidencing the “debt” secured by the second security deed. “The confirmation statute does not bar a subsequent action ‘to recover on an independent, separate, unsecured obligation. It is not within the ambit of the statute requiring confirmation.’ [Cit.]” Kennedy v. Trust Co. Bank of Gwinnett County, 160 Ga. App. 733, 734-735 (288 SE2d 87) (1981).

As the majority notes, in C. K. C., Inc. v. Free, 196 Ga. App. 280 (395 SE2d 666) (1990), there was but one purchase money debt, evidenced by two separate notes and secured by one security deed. Under those circumstances, it is clear that foreclosure under the one security deed would encompass the one debt, notwithstanding that that debt had been evidenced by two separate notes.

As the majority also notes, in the instant case, however, there are two separate debts, evidenced by two separate notes and secured by two separate security deeds. Appellee was owed not only the debt secured by the second security deed, but, by assignment, was also owed the debt secured by the first security deed. By virtue of this assignment, the two debts owed to appellee did not merge. See Williams v. Joel, 89 Ga. App. 329 (3) (79 SE2d 401) (1953). In the instant case, the first security deed did contain an “open-end” dragnet clause. However, that clause would not operate to merge the debt secured by the second security deed into the debt secured by the first security deed. Pursuant to OCGA § 44-14-1, the operation of that clause is limited to debts arising between the “original parties” to the first security deed and appellee was not an original party thereto, but held that first security deed by assignment. See Citizens Fed. S. & L. Assn. v. Andrews, 114 Ga. App. 94, 96 (1) (150 SE2d 301) (1966).

Since appellants were in default on both notes, appellee, as the holder of both the first and second security deeds, was entitled to institute foreclosure under either the first security deed, the second security deed, or both. Pindar, Ga. Real Estate Law, § 21-74 (3d ed. 1986). Appellee instituted foreclosure only under the first security deed. By foreclosing under the first security deed and failing to confirm, appellee is now barred from seeking a deficiency judgment as to the debt which had been secured by that first security deed. Foreclosure under the first security deed would also serve to extinguish the second security deed and to render the debt which had been secured thereunder an unsecured obligation, but foreclosure under the first security deed would not serve to extinguish the debt which had been secured by that second security deed. Failure to confirm foreclosure under the first security deed would not bar appellee from suing appellants on that independent, separate, unsecured obligation which had formally been secured under the second security deed.

Decided December 4, 1992 —

Reconsideration denied December 16, 1992

Schreeder, Wheeler & Flint, David Flint, Alexander J. Simmons, Jr., for appellants.

Tomlinson & Dennison, Jeffrey R. Joyce, for appellee.

I am authorized to state that Judge Johnson joins in this special concurrence.


author: Carley, Presiding Judge.

text:
    A92A0828.
    DOUGLAS v. THE STATE.
    (426 SE2d 628)
   Carley, Presiding Judge.

Appellant and two others were jointly indicted for trafficking in cocaine. After one co-indictee had pled guilty, appellant and the other co-indictee were brought to trial before a jury. The co-indictee was found not guilty, but a judgment of conviction and sentence for attempt to commit trafficking in cocaine were entered against appellant by the trial court and he appeals.

1. Appellant testified in his own defense. He freely admitted that he had intended to traffick in cocaine and that he had initially entered into a conspiracy to commit that crime with his co-indictees. However, he also testified that he had subsequently withdrawn from this conspiracy before the crime had actually been committed by his co-indictee who had pled guilty. See OCGA § 16-4-5. In the trial court’s charge, instructions were given on attempt to commit trafficking in cocaine as a lesser included offense. However, the verdict that was returned by the jury did not find appellant guilty of trafficking in cocaine or of an attempt to commit that crime. The verdict found him “guilty of intent to traffick in cocaine.” (Emphasis supplied.) The trial court specifically asked the jury foreman whether the verdict was a finding of appellant’s “criminal attempt to traffick in cocaine?” (Emphasis supplied.) The response to this inquiry was: “No, we couldn’t decide if it was attempt or intent. We weren’t sure what they said.” (Emphasis supplied.) Despite the jury foreman’s unequivocal statement that the verdict did not represent a finding that appellant was guilty of attempt, the trial court, without further inquiry, instructed the jury foreman that “it would be criminal attempt” and ordered that the verdict be rewritten to reflect that finding. Appellant enumerates as error the trial court’s entry of a judgment of conviction and sentence for “attempt” to traffick in cocaine, when the verdict, as originally returned by the jury, had found him guilty of only “intent” to commit that crime.

By his own admission, appellant had had the requisite intent to commit the greater crime of trafficking in cocaine. However, appellant’s mere intent, without more, would not be punishable as a “crime.” A “crime” requires an act or omission, as well as intent. OCGA § 16-2-1. When asked by the trial court whether appellant had been found guilty of the lesser crime of “attempt,” the jury foreman’s immediate response was “No.” The trial court apparently construed the remainder of the jury foreman’s response as indicating that the jury had been confused and had mistakenly employed the word “intent” for “attempt” in its verdict. However, the jury foreman did not state that the jury had been unsure what the trial court had said in its charge, wherein it had instructed on “intent” as an element of any crime and on “attempt” to commit trafficking in cocaine as a lesser included offense of the crime for which appellant was indicted. The jury foreman’s response was that the jury had been unsure “what they said.” (Emphasis supplied.) This is an obvious reference to the evidence regarding the understanding that had been reached between appellant and his co-indictees. Appellant had admitted inculpatory discussions regarding commission of the greater crime but, according to him, he had thereafter withdrawn from the conspiracy before the co-indictee who pled guilty had actually trafficked in cocaine. Thus, the jury foreman’s response was, in effect, an affirmation of the jury’s verdict finding appellant guilty of having only the “intent” to commit the greater crime. The jurors had not found appellant guilty of “attempt” because, being unsure among themselves as to the understanding that was ultimately reached by appellant with his co-indictees, they could not decide whether he was guilty of actually having attempted to commit the crime or whether he had merely had the initial intent to do so. If the 12 jurors could not decide beyond a reasonable doubt that appellant had not withdrawn from the conspiracy as he claimed, then appellant could not be found guilty of an attempt to traffick in cocaine.

“A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. The jury’s original verdict finding appellant was guilty only of having the intention to traffick in cocaine “amounted to an acquittal. There could be no finding of guilt without [an inculpatory act] in this case. [Cits.] In Ezzard v. State, 11 Ga. App. 30 (74 SE 551) [(1912)], where the verdict was found to be one of acquittal, this court found that a new trial was precluded under the former jeopardy provisions of the bill of rights. It follows that once the jury reached its verdict in this case, and the same was presented to an officer of the court and the court, the trial had ended. The trial court was without authority to [order the jury foreman to rewrite the verdict to reflect a finding of appellant’s guilt for attempt to traffick in cocaine].” Maltbie v. State, 139 Ga. App. 342, 345 (2) (228 SE2d 368) (1976). It follows that the rewritten verdict was a mere nullity and that the jury’s accession to the void verdict, as rewritten at the trial court’s direction, is of no consequence. Here, as in Maltbie v. State, supra at 345 (4), all actions occurring subsequent to the return of the jury’s original verdict were nugatory and appellant’s conviction must be “reversed with direction that a judgment of ‘not guilty’ be entered of record. . . .”

Decided December 3, 1992 —

Reconsideration denied December 16, 1992

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

2. Appellant’s remaining enumerations of error are obviously moot.

Judgment reversed with direction.

Pope and Johnson, JJ., concur.


author: Sognier, Chief Judge.

text:
    A92A0841.
    ANDREWS et al. v. MESSINA.
    (426 SE2d 641)
   Sognier, Chief Judge.

Henry and Linda Andrews brought suit against wife and husband, Tonda and Darcy Messina, individually and “as partners, d/b/a Messina & Associates,” to recover damages for breach of contract and fraudulent misrepresentations allegedly made by Mr. Messina concerning the Andrews’ purchase of a new house. The trial court granted Ms. Messina’s motion for summary judgment, and this appeal ensued.

The record establishes that appellants entered into a contract on July 20, 1988 for the purchase of a new home. The contract was signed by Mr. Messina as “seller.” An exhibit attached to the contract set forth a punch list and also provided that “builder” (whose identity was not set forth in the contract) would finish the basement on a cost-plus basis. The sale closed on August 19, 1988 with Mr. Messina alone signing the warranty deed and the closing documents. It is uncontroverted that Ms. Messina (hereinafter appellee) did not sign, either individually or in a representative capacity, any of the documents executed in connection with the sale of appellants’ home.

1. To the extent appellants contend appellee is liable to them because she was a “secret or dormant” business partner or joint venturer “in” the entity appellants denominate “Messina & Associates,” we find no error in the trial court’s grant of appellee’s summary judgment motion. The evidence is uncontroverted that “Messina & Associates” is actually the legal entity of “Messina & Associates, Inc.,” a Georgia corporation whose valid articles of incorporation and applicable corporate registration form were proffered into evidence. These documents and the affidavits of both appellee and Mr. Messina established that appellee is not an officer, director, or shareholder of Messina & Associates, Inc. (hereinafter “M & A”). No contention was made and no evidence was adduced to pierce M & A’s corporate veil. See Marett v. Professional Ins. Careers, 201 Ga. App. 178, 181-182 (1) (b) (410 SE2d 373) (1991). Thus, the trial court did not err by concluding appellee was not a partner “in” M & A and by granting summary judgment to appellee on this issue.

2. Construed liberally, appellants’ complaint sets forth the allegation that appellee was a partner or joint venturer “with” M & A or “with” her husband, who averred that he, “d/b/a” M & A, contracted with appellants to construct and sell them a new home. We find no error in the trial court’s grant of summary judgment to appellee on appellants’ claims inasmuch as their claims are based on appellee’s status as an “actual” partner with Mr. Messina or with M & A.

“A partnership is an association of two or more persons to carry on as co-owners a business for profit.” OCGA § 14-8-6 (a). Both appellee and Mr. Messina averred that appellee was not a business partner with or an agent of M & A and denied that appellee had ever been involved in any partnership or joint venture with Mr. Messina in regard to the construction and sale of appellants’ home. Both also averred that appellee has never had an interest in the profits and losses of M & A and had no interest in the profits and losses with regard to the construction of appellants’ home.

Against this positive evidence, appellants adduced only circumstantial evidence in the form of the affidavit of the teller at the bank used by the Messinas and their businesses, in which the teller identified documents reflecting the deposit and withdrawal of funds, all personally handled by appellee, between M & A accounts and joint accounts in the name of both appellee and Mr. Messina, as well as transactions between M & A accounts and an account in the name of Delicious Enterprises, Inc., which the teller averred was appellee’s “business account.” Appellants argue a jury could infer from the bank teller’s affidavit and accompanying documents that the funds shown to have been transferred out of M & A’s account were actually “profits” in the alleged partnership and that because these funds were deposited either into appellee’s joint accounts with Mr. Messina or into an account of Delicious Enterprises, Inc., a jury could infer that the money was going to appellee as her share of the profits and thus could conclude appellee was a partner with M & A or Mr. Messina. See OCGA § 14-8-7 (4). We do not agree.

“[I]n deciding a motion for summary judgment, ‘a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. (Cits.)’ . . . [Cit.]” Mitchell v. Haygood’s Hauling &c., 194 Ga. App. 671, 672 (1) (391 SE2d 481) (1990). The inferences appellants draw from the transfer of money into accounts bearing the name of appellee or her business do not demand a finding that those transferred sums constituted appellee’s share of the profits in her alleged partnership with M & A or Mr. Messina and thus have no probative value against appellee’s positive and uncontradicted evidence that she was not a partner and did not have any interest in the profits from the construction of appellants’ home or in M & A. Appellants’ inferences are therefore insufficient to create a conflict in the evidence so as to require its submission to a jury, id., and summary judgment to appellee was proper. See Southeastern Wholesale Supply Co. v. Guevara, 191 Ga. App. 600, 601 (382 SE2d 685) (1989).

3. Appellants’ complaint can also be construed as alleging the existence of a partnership by estoppel. OCGA § 14-8-16 (a) provides that when a person “by words spoken or written or by conduct” represents herself or consents to another representing her to a third party as a partner with a person not an actual partner, she “is liable to [the third party] who has, on the faith of such representation, given credit to the actual or apparent partnership.” In interpreting the predecessor to this statute, the appellate courts have held that a person who holds herself out to be a partner, although she in fact has no partnership interest in the business, may be estopped from denying the partnership relationship where the third party was misled by the putative status and acted to his detriment in reliance upon the misrepresentation. Peckham v. Metro Steel Co., 126 Ga. App. 685, 686 (191 SE2d 559) (1972); English v. Moore, 28 Ga. App. 265, 266 (1) (110 SE 737) (1922). See also Chambliss v. Hall, 113 Ga. App. 96, 99 (147 SE2d 334) (1966). Application of the doctrine of partnership by estoppel has not been limited to situations where the third party extended credit to the ostensible partner. See Kaplan v. Gibson, 192 Ga. App. 466, 467 (1) (385 SE2d 103) (1989) (evidence sufficient to support finding that physicians were ostensible partners under OCGA § 14-8-16 to render them liable in medical malpractice suit).

It is uncontroverted there are no written documents indicating that appellee was a partner with Mr. Messina or M & A, see American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147, 148 (4) (b) (74 SE 1084) (1912); compare Bloise v. Trust Co. Bank, 170 Ga. App. 405, 407 (2) (317 SE2d 249) (1984), and appellants do not assert that appellee and her husband expressly stated to them that appellee was a partner. Compare Kaplan, supra.

Rather, appellants rely on appellee’s conduct in managing certain aspects of the construction of appellants’ home and appellant Henry Andrews’ averral that Mr. Messina told him that “[appellee] handles all the finances and business records.” As to appellee’s conduct, appellants averred in their affidavits that appellee had arranged for subcontractors and others to perform work at the construction site; authorized payment for work to be performed; inspected problems in the home and supervised repairs; and explained to appellants the basis for charges in bills submitted to them. Appellant Linda Andrews averred that it was “clear from my dealings with [appellee] that she was directly involved in the decision making, operation and management of the Messinas’ residential construction business, including the corrective work and additional work on [appellants’] residence.” Henry Andrews averred that based on the Messinas’ “conduct and the express statements both of them made to me . . . with regard to [appellee’s] involvement with [Mr.] Messina in the residential construction business, ... it was communicated to me and it was my clear understanding that [appellee] was a partner with [Mr.] Messina in the residential construction business and with regard to the sale and construction work on my property. Therefore, in all my dealings with the Messinas, I relied on their conduct and their representations that [appellee] was a partner with [Mr.] Messina in the residential construction business.”

Appellants also proffered affidavits from a subcontractor setting forth how he had received payment for work on appellants’ home from appellee, and from several parties setting forth the manner in which appellee had assumed a major role in the sale and construction of another residence.

Even assuming, arguendo, that this evidence was sufficient to support a finding that appellee represented herself, or was represented by Mr. Messina, as a business partner with him, it is uncontroverted that appellants did not act in reliance to their detriment on the representation. Averrals by Linda Andrews reflect that she did not meet appellee until after the closing and thus she could not have entered into the purchase of the residence in reliance upon appellee’s words or conduct. See Pope v. Triangle Chem. Co., 157 Ga. App. 386, 389-390 (4) (277 SE2d 758) (1981). Likewise, Henry Andrews indicated in his affidavit that the reasons leading him to conclude appellee was Mr. Messina’s business partner (i.e., Mr. Messina’s statement and appellee’s conduct detailed in his affidavit) occurred after the closing. This conflicts with Henry Andrews’ averral that he relied upon appellee’s status as an ostensible partner with Mr. Messina during “all my dealings with the Messinas” (emphasis supplied), including, arguably, the negotiations towards and the closing of the sales transaction. No explanation is offered for this apparent contradiction and, applying the “contradictory testimony rule,” see Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430-431 (2) (408 SE2d 443) (1991), the trial court was authorized to eliminate the favorable portion of Henry Andrews’ contradictory testimony, see Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (388 SE2d 909) (1989), and conclude that appellants did not act in reliance on appellee’s alleged partnership with Mr. Messina when they entered into the agreements that form the basis of their breach of contract claim.

Decided December 4, 1992 —

Reconsideration denied December 16, 1992

McCalla, Raymer, Padrick, Cobb, Nichols, Echols & Clark, C. James Jessee, Jr., Charney K. Berger, for appellants.

Kaufman, Chaiken & Sorensen, Robert J. Kaufman, Fredric Chaiken, for appellee.

Summary judgment was likewise proper to appellee on the partnership by estoppel theory as to appellants’ fraudulent misrepresentation claim because there is no evidence that appellants acted in reliance on appellee’s alleged partnership in regard to the fraudulent misrepresentations, all of which were made by Mr. Messina and involved representations either that the house would be built according to applicable building codes in a workmanlike manner or that certain corrective work would be performed. Accord Pope, supra at 389 (4).

Therefore, because the record establishes that appellee was not an actual partner with Mr. Messina or M & A and no question of fact regarding partnership by estoppel was raised by the evidence, the trial court correctly granted summary judgment in favor of appellee. See generally Southeastern Wholesale Supply Co., supra.

Judgment affirmed.

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

       A suggestion of death of Darcy Messina has been filed in this case.

       It appears from statements made by counsel to the trial court during the hearing on the summary judgment motion that Messina & Associates, Inc. had instituted bankruptcy proceedings.


author: Johnson, Judge.

text:
    A92A0892.
    DEVIN LAMPLIGHTER, LTD. et al. v. AMERICAN GENERAL FINANCE, INC.
    (426 SE2d 645)
   Johnson, Judge.

American General Finance, Inc. (“American General”) brought this action against Devin Lamplighter, Ltd. and its general partners (“the defendants”) seeking recovery on a promissory note secured by a deed to secure debt. The parties filed cross-motions for summary judgment. The trial court granted American General’s motion, and denied the defendants’ motion. We affirm.

The pertinent facts are not in dispute. The defendants executed a promissory note in favor of American General. The note, which we will refer to as the “third note” for clarity, was secured by a deed to secure debt. The property given as security for the third note was also encumbered by two superior liens, a first in priority deed to secure debt in favor of Federal Home Loan Mortgage Corporation and a second in priority deed to secure debt in favor of Southern Diversified Properties, Inc. Southern subsequently assigned its note and security deed to American General. This left American General in the second priority position, holding both the second and third mortgages on the subject property.

Acting under the power of sale provision of the second in priority deed to secure debt obtained by the assignment from Southern, in May 1990, American General foreclosed on the property secured by the two deeds to secure debt and purchased the property back at the foreclosure sale. It applied the proceeds from the sale to the indebtedness secured by the second in priority security deed. It never confirmed this foreclosure sale as contemplated by OCGA § 44-14-161. Six months following this foreclosure, the holder of the first in priority security deed foreclosed on the subject property, effectively eliminating any interest of American General in the property. Subsequently, American General brought the instant action against the defendants seeking to collect on the third note and summary judgment was granted in its favor.

1. The defendants contend that American General’s suit against them was a deficiency action which was barred because American General failed to have the foreclosure sale confirmed, and, therefore, tháx the trial court erred both in granting American’s motion for summary judgment and in denying their motion for summary judgment.

Citing C. K. C., Inc. v. Free, 196 Ga. App. 280 (395 SE2d 666) (1990), the defendants argue that a lender who holds two notes secured by the same property and forecloses on one note without confirming the foreclosure sale pursuant to OCGA § 44-14-161 is barred from suing on the other note because such a suit constitutes the pursuit of a deficiency judgment which cannot be obtained absent judicial confirmation. However, C. K. C., Inc. v. Free is distinguishable. In that case, there was but one purchase money debt, evidenced by two separate notes and secured by one security deed. Under those circumstances, it is clear that foreclosure under the one security deed would encompass the one debt, notwithstanding that that one debt had been evidenced by two separate notes.

In the instant case, there are two separate debts, evidenced by two separate notes and secured by two separate security deeds. Until American General purchased the second mortgage from Southern, there were two creditors. Thus, American General was owed not only the debt secured by the third security deed, but, by assignment, was also owed the debt secured by the second security deed. The defendants were in default on both notes which evidenced the two separate debts. American General foreclosed only under the second security deed and failed to obtain confirmation. In failing to obtain confirmation, American General is now barred from seeking a deficiency judgment as to the debt that had been secured by the second security deed. However, American General’s actions and inactions with regard to foreclosure under the second security deed merely had the eifect of rendering the debt that had been secured under the third security deed an unsecured obligation. Failure to confirm foreclosure under the second security deed did not bar American General from suing the defendants on that independent, separate, unsecured obligation. Clements v. Fleet Finance, 206 Ga. App. 736 (426 SE2d 910) (1992). Accordingly, it is not C. K. C., Inc., supra, but Clements v. Fleet Finance, supra, that is controlling.

Summary judgment is appropriate where the moving party shows he is entitled to judgment as a matter of law and there is no genuine issue of material fact. Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 647 (409 SE2d 262) (1991). We conclude that the trial court was correct in granting summary judgment to American General and in denying summary judgment to the defendants.

2. The defendants further contend that American General was estopped from pursuing judgment against them because American General fraudulently induced them to execute the note upon which American General brought suit. The defendants assert that the inducement occurred when American General’s branch manager told one of the defendants, prior to making the loan, that if American General ever foreclosed on the property it would not bring suit against the defendants unless it confirmed the sale and established a deficiency. We have previously held that “(f)raud cannot be predicated upon statements which are promissory in their nature as to future acts. [Cit.]” Marchman Oil &c. Co. v. Southern Petroleum Trading Co., 167 Ga. App. 691 (307 SE2d 509) (1983). Therefore, even if such a promise was made, it would not give rise to a defense of fraudulent inducement. Furthermore, it is clear that even if such a promise was made it applied to the third note, rather than the subsequently acquired note.

Decided December 4, 1992 —

Reconsideration denied December 16, 1992

Schreeder, Wheeler & Flint, John A. Christy, J. Christopher Desmond, for appellants.

Prior & Buser, Thomas E. Prior, 0. Byron Meredith III, Charles G. Barger, Jr., for appellee.

“ ‘A promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor. (Cits.) In the absence of fraud ... an unconditional promissory note cannot be changed into a conditional obligation by parol evidence.’ [Cit.] ‘It is well established that a promissory note may not be modified by the imposition of conditions not apparent on its face. (Cits.) In Whiteside v. Douglas County Bank, 145 Ga. App. 775, 776 (245 SE2d 2) (1978), we held: “The note being an unconditional promise, the contract is complete as written; parol evidence may not be used to impose conditions which are not apparent from the face of the note. An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.” ’ [Cit.]” Bentley v. Nat. Bank of Walton County, 175 Ga. App. 732, 733 (1) (334 SE2d 331) (1985). The subject note constituted an unconditional promise to pay. Therefore, the parol evidence rule (OCGA § 24-6-2) applies to prohibit the defendants from proving American General’s branch manager’s alleged oral promise which, if proven, would clearly contradict the terms of the note requiring payment. The defendants have presented no competent evidence of bad faith on the part of American General which would serve to take the note out of the ambit of the parol evidence rule. We therefore find this enumeration to be without merit.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0912.
    WILLIAMS TILE & MARBLE COMPANY, INC. v. RA-LIN & ASSOCIATES, INC.
    (426 SE2d 598)
   Carley, Presiding Judge.

Appellee-plaintiff was the general contractor for a building project and appellant-defendant was its terrazzo flooring subcontractor. Appellee brought suit, seeking to recover for appellant’s alleged breach of its subcontract. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Contending that the dispute with appellee was subject to arbitration, appellant moved to stay the judicial proceedings. The denial of this motion is enumerated as error.

Although the subcontract itself did not specifically provide for arbitration, appellant contends that, through incorporation by reference, arbitration became an applicable remedy thereunder. However, the general contract did not provide for arbitration as between appellee and the owner and, despite appellant’s contentions to the con-1 trary, it is clear that the architect’s plans and specifications were incorporated into the subcontract by reference solely for the purpose of establishing the necessary materials for the terrazzo flooring and manner of their installation and not for the purpose of establishing arbitration as an available remedy under the subcontract. Where “ ‘plans and specifications are referred to in [a] contract for a particular specified purpose, such specifications can serve no other purpose than the one specified, and are foreign to the contract for all other purposes. In the absence of express provision in the contract, the specifications can neither restrict nor extend the scope of the contract to subjects other than those covered by the contract.’ ” Pittsburgh Plate Glass Co. v. American Sur. Co. of N. Y., 66 Ga. App. 805, 813 (19 SE2d 357) (1942). “Incorporation by reference in [a] contract is generally effective to accomplish its intended purpose where the provisions to which reference is made have a reasonably clear and ascertainable meaning. [Cits.] The referenced provisions here had a reasonably clear and ascertainable meaning.” ADC Constr. Co. v. McDaniel Grading, 177 Ga. App. 223, 225-226 (2) (338 SE2d 733) (1985). That “reasonably clear and ascertainable meaning” was only to specify the material and manner of installation of the terrazzo flooring, and not to provide for the remedy of arbitration which did not otherwise exist in the general contract. Compare ADC Constr. Co. v. McDaniel Grading, supra at 225 (2).

It follows that the trial court correctly denied appellant’s motion to stay the judicial proceedings. “A party is not required ‘to submit to arbitration any dispute which he has not agreed to so submit. (Cits.)’ [Cit.]” Pope v. Continental Augusta Woodlands, 169 Ga. App. 874, 876 (315 SE2d 307) (1984).

2. Among its defenses, appellant relied upon OCGA § 13-4-23: “If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” Appellant urges that the trial court erroneously excluded evidence which was relevant to this defense.

Appellant’s main contention is that the trial court erred in excluding evidence which would show that the deficiency in the terrazzo flooring was attributable to a breach of appellee’s duty to prepare the surface before the terrazzo was applied. The contractual specifications did provide for the cleaning and preparation of the surface prior to installation of the terrazzo and, pursuant to the general contract, appellee certainly owed this duty to the owner. Under the clear and unambiguous terms of the subcontract, however, this duty was owed to appellee by appellant. Accordingly, the trial court certainly did not err in refusing to allow appellant to attempt to show that any improper preparation of the surface was a viable defense to appellant’s liability for the deficiency in the terrazzo flooring.

A review of the record shows that appellant nevertheless was allowed to pursue its OCGA § 13-4-23 defense and to adduce evidence to show that the deficiency in the terrazzo flooring was attributable to the improper performance of contractual duties which were not owed by it under its subcontract, but which were owed by others engaged in the project. Accordingly, appellant’s enumeration of error predicated upon its OCGA § 13-4-23 defense is meritless.

3. Appellant enumerates as error the trial court’s refusal to allow a witness, who was not a party to the general contract, to testify as to his own personal interpretation of the meaning of certain provisions thereof.

Expert testimony may be admitted to explain technical terms in a contract. Daniel v. Maddox-Rucker Co., 124 Ga. 1063 (2) (53 SE 573) (1906). Testimony as to what the parties to a contract understood it to mean may also be admissible. Foley, Bro. & Co. v. Abbott & Bro., 66 Ga. 115 (1, 2) (1880). However, the personal interpretation of a contractual provision by a stranger to the contract obviously has no probative relevance whatsoever. Accordingly, even assuming that the provisions of the general contract were a relevant inquiry in the instant case, the trial court did not err in refusing to allow appellant’s witness to testify as to his personal interpretation of any of those provisions.

4. Appellant moved for a directed verdict on the ground that appellee had failed to prove damages. The denial of this motion is enumerated as error.

Appellant “correctly notes on appeal that the true measure of damages under the facts of this case is ‘the difference between the value of the work as actually done and the value which it would have had if it had been done properly in pursuance of the contract.’ [Cits.] However, [appellant’s] contention that [appellee] has failed to offer any proof in accordance with this measurement is without merit since ‘(t)his difference in value can be shown ... by evidence of the reasonable cost of correcting the defect.’ [Cits.]” Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga. App. 777, 780 (2) (285 SE2d 236) (1981). “Proof of the cost of repair because of the defective construction is illustrative of the difference in value claimed as damages, and is more likely to represent the true damage suffered from the failure of [a contractor] to complete his contract than would the opinion of an expert. . . as to the difference in values, though such proof would also have been permissible. [Cits.]” Rose Mill Homes v. Michel, 155 Ga. App. 808-809 (1) (273 SE2d 211) (1980).

5. Appellant also moved for a directed verdict as to appellee’s recovery of attorney’s fees under OCGA § 13-6-11. The denial of this motion is enumerated as error.

A review of the record shows the existence of a bona fide controversy as to whether the deficiency in the terrazzo flooring was attributable to appellant’s breach of its subcontract or to reasons for which appellant would have no contractual liability to appellee. The existence of such a bona fide controversy would preclude a recovery of OCGA § 13-6-11 attorney’s fees on the theory that appellant had been stubbornly litigious or caused appellee unnecessary expense, notwithstanding that the jury ultimately resolved that controversy in favor of appellee. See Ginsberg v. Termotto, 175 Ga. App. 265, 267 (3) (333 SE2d 120) (1985). Compare Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990).

Appellee urges that attorney’s fees are nevertheless recoverable on the basis of appellant’s bad faith. However, a review of the record shows that, although there was ample evidence of appellant’s breach of contract, there was insufficient evidence of appellant’s bad faith in entering into the subcontract or its performance thereof. “[T]here was no showing that appellant acted through ill will or furtive design with regard to the performance of the contract. [Cit.] Since there was no evidence from which a jury could find that the contract was made in bad faith or that appellant breached it as a result of some sinister motive, the award of attorney’s fees cannot be sustained on the basis of bad faith. [Cits.]” Glen Restaurant v. West, 173 Ga. App. 204, 205 (325 SE2d 781) (1984). See also Mutual Fed. S. & L. Assn. of Atlanta v. Johnson, 124 Ga. App. 68, 70 (2) (183 SE2d 50) (1971). Compare Hirsh v. Goodlett, 196 Ga. App. 127, 128 (2) (395 SE2d 626) (1990); Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 35 (13) (392 SE2d 717) (1990); McDonald v. Winn, 194 Ga. App. 459 (1) (390 SE2d 890) (1990); Gaines v. Crompton & Knowles Corp., 190 Ga.

Decided December 1, 1992 —

Reconsideration denied December 16, 1992.

Shapiro, Fussell, Wedge & Smotherman, J. Ben Shapiro, Jr., Michael P. Davis, Daniel M. Jennings, for appellant.

Smith & Diment, Dana G. Diment, James J. Hopkins, for appellee.

App. 863, 868 (11) (380 SE2d 498) (1989).

It follows that appellant’s motion for a directed verdict as to its non-liability for OCGA § 13-6-11 attorney’s fees was meritorious and the trial court erred in failing to grant it. A recovery of OCGA § 13-6-11 attorney’s fees in a contract action must be based upon evidence which shows more than a mere breach of contract.

6. Appellant’s remaining enumerations of error relate to evidentiary rulings by the trial court. Each enumeration has been considered and none has been found to warrant the grant of a new trial.

7. The judgment is affirmed in all respects except as to the award of attorney’s fees.

Judgment affirmed in part and reversed in part.

Pope and Johnson, JJ., concur.


author: Cooper, Judge.

text:
    A92A0951.
    JENKINS COUNTY HOSPITAL AUTHORITY v. LANDRUM et al.
    (426 SE2d 572)
   Cooper, Judge.

Appellees brought this action on behalf of their minor child for injuries suffered by the child during a cesarean delivery performed by Dr. Virgil Abrue at appellant hospital. Appellees alleged in their complaint that Dr. Abrue was negligent in performing a premature cesarean section without having a proper mechanical ventilator to alleviate respiratory distress and that the hospital was negligent in not having the necessary equipment to alleviate the child’s respiratory distress and in having Dr. Abrue on its staff. Pursuant to OCGA § 9-11-9.1, appellees filed with their complaint an expert affidavit addressing the specific allegations of negligence made against Dr. Abrue. The hospital filed a motion to dismiss on the ground that appellees failed to comply with OCGA § 9-11-9.1 because the affidavit did not address any of the allegations of negligence attributed to the hospital. The trial court denied the motion, and we granted this interlocutory appeal to consider whether the trial court correctly determined that an OCGA § 9-11-9.1 affidavit is not required as to the allegations of negligence against the hospital.

Decided September 8, 1992 —

Reconsideration denied December 16, 1992.

Oliver, Maner & Gray, William P. Franklin, Jr., Wendy W. Williamson, for appellant.

Finch, McCranie, Brown & Thrash, Charles E. McCranie, Hunter & Hunter, Hugh T. Hunter, Harry H. Hunter, Thomas M. Odom, for appellees.

This case is controlled by Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992) and Lamb v. Candler General Hospital, 262 Ga. 70 (413 SE2d 720) (1992). Therefore, an affidavit under OCGA § 9-11-9.1 is not necessary, and the trial court did not err in denying the hospital’s motion to dismiss. See Lamb, supra at 71.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Andrews, Judge.

text:
    A92A0969.
    HALL et al. v. BUCK.
    (426 SE2d 586)
   Andrews, Judge.

This is the second appearance in this court of a dispute arising out of the following facts. The first appearance was in Southern Gen. Ins. Co. v. Buck, 202 Ga. App. 103 (413 SE2d 481) (1991).

Viewing the facts in the light most favorable to the verdict, appellant/defendant Hall and appellee/plaintiff Nancy Buck were involved in a vehicular collision in which Buck was injured. At the time of the accident Hall was driving a tractor trailer which was loaded with logs, which extended six feet from the rear of the vehicle.

As a result of the accident Buck sued the driver, defendant Hall, and the owner of the tractor, defendant Geraldine Smith. Buck later amended her complaint to include defendant Cowart, d/b/a A & G Timber Company, the trailer owner. Buck alleged that at the time of the accident Hall was acting within the scope of his employment for defendants Smith and Cowart.

Buck contended that Hall had pulled out in front of her in heavy fog and that she had been unable to see the tractor trailer due to the fact that it had no warning signals on its load. According to Buck, the vehicle did not have its rear lights on, it had no warning flag on the load, the reflectors of the trailer were obscured by the load of logs hanging down, and no log light was on the end of the load. In response to these contentions, the defendants argued that the headlights and taillights of the vehicle were on and a red flag was on the rear of the load; they conceded that no red light was on the rear of the load. They claimed that Buck was equally negligent in that she was speeding and failed to keep a proper lookout ahead.

At trial, Buck presented evidence that on the morning of September 19, 1988, Hall had stopped at a convenience store on U. S. Highway 280. A number of witnesses testified that the fog was so thick that morning that headlights were necessary.

It was undisputed that Hall pulled out of the convenience store area and reentered Highway 280 immediately before the accident. There was conflicting testimony regarding how far from the store the accident occurred. One witness testified that she came upon debris in the road from the wreck approximately one block from the store. Another witness testified that the accident occurred “several blocks” from the store. Defendant Hall stated that the distance between the accident scene and the store was 720 feet. A photograph contained in the record shows that the accident occurred on a flat, straight portion of the roadway.

Defendant Hall testified that he had his headlights and taillights on at the time of the accident, but that he only used the log lights at night. Hall admitted that the fog was bad enough that he needed his headlights at the time of the accident. He stated that at the time of the accident, the logs were loaded so that they extended from the back of the truck about six feet.

The case was tried to a jury which found appellants jointly liable and returned a verdict in favor of the plaintiff for $425,000.

Appellants Hall and Smith appeal, as does appellant Cowart.

1. Hall, Smith and Cowart claim that the trial court erred in denying their motion for directed verdict as to the applicability of the right-of-way statute, OCGA § 40-6-73, and in charging the jury on that statute. Citing Harrison v. Ellis, 199 Ga. App. 199 (404 SE2d 348) (1991), and Blake v. Continental Southeastern Lines, 168 Ga. App. 718 (309 SE2d 829) (1983), appellants claim that right-of-way issues were wholly inapplicable in this case. They claim that defendant Hall entered the roadway from the parking area of the store and traveled a distance of more than 720 feet to the area of impact and that there was no evidence in the case to suggest that the collision was caused by any failure of defendant Hall to grant the right-of-way.

Pretermitting the question of whether the fact that Hall and Smith originally submitted a charge on right-of-way to the court es-tops them from making this argument here, we find the substance of this enumeration without merit. OCGA § 40-6-73 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Whether the duty existed in this case and whether appellants violated it was clearly a question of fact for the jury. See Hunt v. Schmitt, 190 Ga. App. 554 (1) (379 SE2d 409) (1989); Wilson v. City of Riverdale, 203 Ga. App. 250 (2) (416 SE2d 825) (1992); compare Blake, supra. There was no error in the trial court’s denial of the motion for directed verdict, nor in the charge on this issue.

2. In a separate enumeration, Hall, Smith and Cowart claim the trial court erred in denying their motion for directed verdict and charging the jury on OCGA § 40-6-184 (a) (1). That section provides that: “[n]o person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” Citing Blake, supra and Barnett v. Thomas, 126 Ga. App. 587, 593 (191 SE2d 450) (1972), appellants claim that this statute was irrelevant to the case and that the injection of this issue requires reversal. Again, there was testimony from which the jury could find that the tractor trailer had not reached a safe speed, the denial of the motion for directed verdict and the charge were proper, and this enumeration is without merit.

3. In three more enumerations, Hall and Smith claim that the trial court erred in denying their motions for directed verdict and charging the jury regarding OCGA §§ 40-8-7; 40-8-23; and 40-8-24. Cowart joins in these arguments with respect to OCGA §§ 40-8-23 and 40-8-24. These sections, in respective order, require that vehicles be in safe mechanical condition, that they be equipped with taillights and that they be equipped with reflectors.

There was no error in the court’s charge on these sections. Appellants argue that charging both OCGA §§ 40-8-7 and 40-8-27 (which they concede was properly charged) allowed the jury to speculate as to the meaning of the terms “good working order” and “safe mechanical condition.” The trial judge charged the general safe vehicle statute, OCGA § 40-8-7, followed by those specific sections contained within that chapter which were supported by the evidence in the case — the statutes dealing with taillights (OCGA § 40-8-23); reflectors (OCGA § 40-8-24); log lights (OCGA § 40-8-27) and red flags (OCGA § 40-8-27). One of Buck’s theories was that the omission of lights and warning signals prevented her from seeing the truck. Accordingly, the court’s instructions to the jury regarding the statutes which addressed these issues were proper.

Appellants’ argument that the “sole legitimate allegation of negligence” was whether or not a red light was required to be displayed on the rear of the load at the time of the collision was meritless. Unlike the situation in Newman v. Collins, 186 Ga. App. 595 (367 SE2d 866) (1988), in this case, one of the primary reasons for the accident was the plaintiff’s inability to see the tractor trailer and the load of logs. Although Hall maintained that he had turned on the headlights and the taillights and that both were operating at the time of the accident, there was evidence that witnesses did not see the taillights when they arrived at the accident scene.

4. In various enumerations, appellants Hall and Smith argue that the trial court erred in several respects in its charge to the jury.

(a) Appellants combine the arguments for four separate enumerations regarding the court’s charge on the duty to display headlights (codified in OCGA § 40-8-20) and duty to display a red light on the rear of a projecting load (OCGA § 40-8-27). Essentially, they argue that the combination of omitting the subsections of OCGA § 40-8-20 which did not address visibility, combined with evidence that Hall was using his headlights at the time of the collision, created the impression that taillights were required. This argument is meritless.

OCGA § 40-8-27 states that “[w]henever the load upon any vehicle extends to the rear four feet or more beyond the bed or body of such vehicle, there shall be displayed at the extreme rear end of the load, at the times specified in Code Section 40-8-20, a red light plainly visible from a distance of at least 500 feet to the sides and rear. The red light required under this Code section shall be in addition to the red rear light required upon every vehicle.” A crucial issue in this case was visibility and the charge was supported by the evidence. Appellants’ argument that there could be a number of reasons for a driver to display headlights does not change the requirement of OCGA § 40-8-27 requiring taillights if visibility is less than 500 feet.

(b) Appellants’■ enumerations of error numbers 7 and 8, which concern the court’s charges on leading vehicles and on negligence per se, are unsupported by argument and are deemed abandoned. See Court of Appeals Rule 15 (c) (2); Bruno v. Evans, 200 Ga. App. 437 (3) (b) (408 SE2d 458) (1991).

(c) In enumerations of error numbers 12 and 13, which appellants argue together, they claim that the trial court erred by failing to instruct the jury regarding the duty of a driver to keep a lookout ahead and regarding the duty of a driver to keep a vehicle under control. Pretermitting the issue of whether appellants waived these objections, we find no error. Appellants have failed to cite the court the specific charges which they requested or to explain in what manner their requested charges were preferable to the exhaustive instructions the trial court gave on general principles of negligence and duties owed. We find that the instructions given were adequate and we find no error.

5. In their final enumeration of error, Smith and Hall claim that the trial court erred by failing to reduce the verdict by $10,000, which was the total amount of personal injury protection benefits which the plaintiff received, instead of simply reducing it by $5,000, which was the amount of basic payments the plaintiff had received for this accident which involved a vehicle weighing more than 6,500 pounds. We find this enumeration without merit. Furthermore, the rule upon which appellants wish to rely, is that which states that where the plaintiff’s no-fault insurer is entitled to subrogation, the collateral source rule does not apply. See McGlohon v. Ogden, 251 Ga. 625 (308 SE2d 541) (1983); see generally OCGA § 33-34-3. Pretermitting any questions regarding the substance of this rule, appellants have failed to properly present this argument for review. Not only have they failed to cite the court to any authority regarding this point, the record is also devoid of any evidence regarding the insurance policies upon which appellants rely. Although the parties stipulated that the plaintiff was paid $10,000 in no-fault benefits, we are unable to simply assume these facts and find this enumeration is without merit.

6. Next, we turn to those arguments, of appellant Cowart which are not included in the items above. First, Cowart claims that the trial court erred when it denied his motion for directed verdict on the theory of respondeat superior.

Cowart argues that the only evidence admitted on which a factual finding of master/servant relationship could be found is that Cowart informed Hall of where to pick up timber and where to deliver it. Citing Coastal Timberlands v. Brown, 141 Ga. App. 800 (234 SE2d 373) (1977), and Bowman v. C. L. McCord Land &c. Dealer, 174 Ga. App. 914 (331 SE2d 882) (1985), Cowart claims that there was no evidence that he had the right to control Hall with regard to the time, manner or method of delivering the timber which had been harvested to the particular lumberyard.

Contrary to Cowart’s assertions, the trial court’s denial of the motion for directed verdict was proper. At the outset, we are aware that there was no dispute that Cowart directed the loading of the logs onto the truck and that Buck’s allegations against Cowart included that the logs had been loaded in a negligent manner and created a hazardous condition. It was similarly uncontested that the trailer was owned by Cowart.

With regard to the claims against Cowart based upon a respondeat superior theory, there was evidence that Cowart told Hall where to take each load and when to leave with each load. There was evidence that Cowart instructed Hall regarding what days of the week to haul. The rig was always kept at Cowart’s shop when it was not being used. Cowart issued a check to Geraldine Smith for the work and Hall extracted his portion of payment from the check before depositing the balance in Smith’s account. In fact, on cross-examination Smith conceded that she stated at her deposition that Hall was working for Cowart at the time of the accident.

“The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor. The test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract.” (Emphasis supplied; citations and punctuation omitted.) Atlanta Braves v. Leslie, 190 Ga. App. 49 (2) (378 SE2d 133) (1989); see also Sparlin Chiropractic Clinic v. TOPS Personnel Svcs., 193 Ga. App. 181 (2) (387 SE2d 411) (1989); see generally OCGA § 51-2-4; compare Coastal Timberlands v. Brown, supra. Under these circumstances, we find no error in the trial court’s denial of the motion for directed verdict.

7. Appellant Cowart also argues that the trial court erred by failing to properly instruct the jury regarding the theories of master and servant. The court charged the jury with respect to OCGA § 51-2-2, which states that: “[e]very person shall be liable for [the wrongful conduct or] torts committed by his wife, his child, or his [employee, at] his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” The court also charged that mere proof of ownership was not sufficient to establish liability against the owner for any injuries and damages that may result from the operation of the vehicle. We are unable to locate a charge which specifically outlines the difference between an employee and an independent contractor.

During the exceptions to the court’s charge, Cowart argued that no charge regarding the test for determining whether Hall was an employee or an independent contractor of Cowart was given. Nevertheless, the court said to Cowart’s attorney: “[y]ou wrote out and the Court allowed you to file at this late date, an additional request in regard to employer and employee. It was in — it was written out on a yellow legal pad. The Court gave that in charge and that was at the charge conference, requested, and granted by the Court. If you had anything else you wanted to give at that time, then you can — the Court would have certainly have considered it. Whether it would have given it or not, I don’t know but I was not requested to give anything further. It has not been requested to give anything further. And the Court feels the charge that was given is adequately adjusted to the evidence in the case.”

Decided November 20, 1992 —

Reconsideration denied December 16, 1992

Newton, Smith, Durden & Kaufold, Wilson R. Smith, Doremus, Jones & Smith, Bobby T. Jones, for appellants.

Hallman & Associates, Ronald W. Hallman, Beckmann & Pin-son, Joseph H. Barrow, Sutton & Associates, Berrien L. Sutton, for appellee.

There is no transcript of the charge conference before us and in the absence of it, we must assume that the court proceeded correctly. Collins v. State, 200 Ga. App. 71 (406 SE2d 520) (1991). Although the record contains Cowart’s submitted written charges regarding the independent contractor/employee relationship, the exchange with the court indicates that Cowart is estopped from claiming that the trial court erred in this regard and accordingly, we find no error in the court’s failure to instruct on this principle.

8. Finally, Cowart argues that the trial court erred by admitting, over objection, evidence regarding the reason that he did not go to the scene of the accident after it had occurred. This enumeration is without merit.

Judgment affirmed.

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