text:
    A95A0842.
    ADAMS v. THE STATE.
    (459 SE2d 182)
   Birdsong, Presiding Judge.

Ernest Adams appeals his convictions of seven counts of forgery in the first degree in violation of OCGA § 16-9-1. He contends the trial court erred by admitting facsimile copies of certain affidavits in violation of the hearsay rule and the best evidence rule, and also contends the trial court erred by denying his motion for a directed verdict on the counts that were proven only by these affidavits.

The State’s evidence showed Adams applied with and was hired by an employment agency under his own name and the alias Ernest Cole and the employment agency placed him with a check printing company under both names. Adams’ job with the check printer was to destroy checks that were not suitable for shipping to the customers. All of the forged checks in this case were checks that Adams should have destroyed.

When banking customers reported that forged checks had been drawn on their accounts, investigation disclosed that the checks were deposited in Adams’ bank accounts. A search of Adams’ home conducted pursuant to a warrant found deposit slips matching some of these deposits.

For several of the forged checks, officials from the companies that were the victims of the forgeries testified that the checks deposited in Adams’ bank account were not signed by anyone at their firm authorized to sign checks and that their company did not do business with Adams or his businesses. On certain of the other checks, however, affidavits executed by officials at the other companies that were also the victims of the forgeries were the only evidence on the issue of authority to sign the checks.

These affidavits showed generally that, after being sworn, the officials stated the affidavits were true and correct to the best of their knowledge and belief, that they had examined the checks in question, that they did not sign the checks, that they did not authorize any other person to sign their names to the checks, that the names appearing on the checks were signed without the officials’ knowledge or consent, that they never received nor expected to receive directly or indirectly any benefit from the checks, that they believed the maker’s signature on the checks was forged by an unknown person, that the deponents were willing to testify in any case instituted in connection with the forged checks, and the affidavits were made for the purpose of inducing the bank to credit to the accounts of the deponents the amount of the checks.

None of the officials who signed these affidavits testified regarding the forgeries alleged in Counts 3, 4, 5, and 6 at Adams’ trial. Instead, the affidavits were introduced through testimony from fraud investigators from the banks concerned. The banks’ investigators testified that the affidavits were made in the normal course of their business and that the affidavits were made in the course of the banks’ business at or near the time of the forgeries. Although appellant objected to the admission of these affidavits because of the best evidence rule and the hearsay rule, the trial court admitted the affidavits in evidence. Held:

1. As the affidavits introduced in evidence were reproductions of the original affidavits, they were admissible notwithstanding Adams’ objection based on the best evidence rule. OCGA § 24-5-26. Because the affidavits supporting the forgeries alleged in Counts 1, 2, and 7 were also supported by the testimony of officials of the companies whose checks were forged, the affidavits were cumulative of the officials’ testimony. Consequently, any error concerning the admission of these affidavits was harmless. Flowers v. State, 181 Ga. App. 572 (353 SE2d 69).

2. Regarding the forgeries in Counts 3, 4, 5, and 6, however, we must reach a different result. Although Adams correctly asserts these affidavits were inadmissible as business records because the prosecution failed to lay a proper foundation for their admissibility (see OCGA § 24-3-14 (b); Suarez v. Suarez, 257 Ga. 102, 103 (355 SE2d 649); Jackson v. State, 209 Ga. App. 217, 219 (433 SE2d 655); Oldham v. State, 205 Ga. App. 268, 270 (422 SE2d 38)), we reverse for a more fundamental reason: Affidavits of absent witnesses cannot be admitted in evidence at criminal trials because doing so violates the right of defendants to confront witnesses against them. Smith v. State, 147 Ga. 689 (95 SE 281).

“It is basic that [e]very person charged with an offense against the laws of this State shall be confronted with the witnesses testifying against him. It is also basic that [u]pon the trial of a criminal case upon the issue of guilty or not guilty, ex parte affidavits are not admissible either for or against the accused. The basis of these rules is the fundamental principle that in a criminal prosecution the testimony of the witnesses shall be taken before the court, so that at the time they give the testimony they will be sworn and will be subject to cross examination, the scrutiny of the court, and confrontation by the accused.” (Citation and punctuation omitted.) Becton v. State, 134 Ga. App. 100, 101 (213 SE2d 195).

Even though properly authenticated business records may be admitted in evidence in criminal trials as an exception to the hearsay rule (see OCGA § 24-3-14 (b); Oldham v. State, supra), these affidavits were not business records because they were not memoranda or records of acts, transactions, occurrences, or events (see OCGA § 24-3-14 (b); Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216)), and they contained inadmissible opinions and conclusions. Malcolm v. State, 263 Ga. 369, 370 (434 SE2d 479); Luke v. Spicer, 194 Ga. App. 183, 184 (390 SE2d 267); Finch v. Caldwell, supra. Moreover, the business record exception is an exception to the hearsay rule (Oldham, supra at 269), and not a general exception to the confrontation clause. We recognize that admission of evidence under exceptions to the hearsay rule necessarily does not implicate the confrontation clause (Higgs v. State, 256 Ga. 606, 608-609 (351 SE2d 448)), but testimonial affidavits such as these do not satisfy the criteria for admission in evidence. Finch v. Caldwell, supra.

Decided July 3, 1995

Albert A. Myers III, for appellant.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

Consequently, the trial court erred by admitting these affidavits.

3. Because no other evidence was introduced on Counts 3, 4, 5, and 6 proving the essential element of the crime of forgery that the checks were drawn without authority, the trial court erred by denying Adams’ motion for a directed verdict on these counts. Thus, the judgment of the trial court on Counts 3, 4, 5, and 6 must be reversed, and the case remanded with direction to enter a directed verdict of acquittal on those counts and to vacate any sentence imposed thereon.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A0476.
    SPENCER v. THE STATE.
    (458 SE2d 886)
   Ruffin, Judge.

Elizabeth Spencer appeals from the judgment entered on her conviction and sentence for trafficking in cocaine. As her sole enumeration of error, she contends the evidence did not support the verdict.

Viewed in a light to support the verdict, the evidence shows that during an undercover drug investigation of the apartment Spencer shared with co-defendant Luis Perez-Corona, the police observed numerous people going into the apartment, staying a few minutes and leaving. On one occasion, a confidential informant wearing an electronic transmitter made a drug purchase from a woman in the apartment. The police obtained a search warrant and upon entering the apartment found Perez sitting on a sofa and Spencer in the bedroom. The police seized two aspirin bottles from between the sofa cushions containing suspected crack cocaine. On an outside balcony, the police found an ice cooler containing two leather waist bags. One bag contained a large amount of cash, and the other contained a substance identified as 28.3 grams of cocaine with a purity of 68 percent. In the bedroom, the police found postal scales, syringes, razor blades and a soda can adapted for use as a crack pipe.

Decided July 5, 1995.

Lyle K. Porter, for appellant.

Daniel J. Porter, District Attorney, Karen E. Reed, Assistant District Attorney, for appellee.

At trial, Perez admitted telling a police officer and the prosecutor that Spencer taught him about crack cocaine, its cost and how to sell it; that the cocaine discovered on the balcony was given to them to sell by Spencer’s friend; and that the majority of their customers were Spencer’s friends.

Spencer, an admitted crack addict, testified in her own defense and denied knowledge of the cocaine on the balcony. She also testified that had she known about the cocaine and money on the balcony, she would have taken them.

On appeal, Spencer contends her conviction, based on circumstantial evidence, was not supported by the evidence.

“To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. [Cit.] Viewing the evidence of this case in a light most favorable to the verdict, we conclude the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that [Spencer] was guilty of the offenses of which [she] was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Murray v. State, 203 Ga. App. 858, 864-865 (8) (418 SE2d 624) (1992).

Judgment affirmed.

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


text:
    A95A0524.
    WILLIAMS v. THE STATE.
    (458 SE2d 892)
   Ruffin, Judge.

Ray Williams was convicted of driving under the influence of alcohol and obstruction of a law enforcement officer. He appeals from the judgment entered on the conviction and sentence enumerating as error the trial court’s failure to charge the jury on simple assault and ineffective assistance of his trial counsel.

1. In his first enumeration of error, Williams contends the trial court erred in failing to charge the jury on simple assault as a lesser included offense of obstruction of a law enforcement officer inasmuch as the indictment accused him of assaulting an officer during a lawful investigation.

The indictment alleged that Williams “did knowingly and willfully resist, obstruct and oppose Chris Ryan, a law enforcement officer with the Savannah Police Department engaged in the lawful discharge of his official duties by offering and doing violence to the person of said officer, to wit: did assault said officer during a lawful investigation and thereafter did violently resist a lawful arrest. . . .” Williams acknowledges that trial counsel did not request a charge on simple assault as a lesser included offense of obstruction and that generally it is not necessary to charge on a lesser included offense where the evidence shows completion of the greater offense. But he contends the court was required to define the term “assault” because it was alleged in the indictment as an essential element of the crime of felony obstruction and has a definite and legal meaning which a jury could not be expected to understand without an appropriate charge.

This argument was rejected by the Supreme Court in Anderson v. State, 226 Ga. 35 (2) (172 SE2d 424) (1970), in which the court held “[i]t is well settled that terms of common usage need not be specifically defined in instructing a jury, and the word ‘assault’ is certainly a term of common usage. [Cit.]” Id. at 36. Moreover, in the instant case, a charge on simple assault as a lesser included offense was not authorized by the evidence because the evidence showed completion of the offense charged. See OCGA § 16-10-24. See also Jones v. State, 204 Ga. App. 279 (419 SE2d 542) (1992). Furthermore, if the jury had determined there was no assault, it had the option of acquitting Williams or convicting him of the lesser included offense of misdemeanor obstruction as it was instructed. Accordingly, this enumeration is without merit.

2. Williams next contends he was denied effective assistance of counsel at trial in five respects: (1) trial counsel failed to request that the word “assault” be stricken from the indictment after the trial court denied the State’s request to charge on assault; (2) counsel failed to request a charge on simple battery against a police officer as a lesser included offense of felony obstruction; (3) counsel prevented Williams from testifying in his own behalf; (4) counsel failed to advise Williams that he was charged with felony obstruction; and (5) counsel failed to request a charge on simple assault as a lesser included offense of felony obstruction.

Decided July 5, 1995

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

“At the hearing on the motion for new trial, the burden was on [Williams] to establish that he received ineffective assistance of trial counsel. [Cit.] To meet this burden, [Williams] was required to show not only that trial counsel’s performance was deficient, but also that, absent trial counsel’s deficient performance, there is a reasonable likelihood that the outcome of the trial would have been different. [Cits.]” White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995).

For the reasons expressed in Division 1 we find no reversible error in trial counsel’s failure to have “assault” stricken from the indictment or to request a charge on simple assault as a lesser included offense. Nor do we find error in counsel’s failure to request a charge on simple battery against a police officer as a lesser included offense as that charge would not have been properly adjusted to the facts because the only physical contact between Williams and Officer Ryan occurred after Williams was placed in handcuffs and was flailing about on the ground.

Furthermore, there was evidence adduced at the hearing on Williams’ motion for new trial from which the trial court could have concluded that counsel did not prevent Williams from testifying at trial and that Williams was advised by counsel that he was charged with felony obstruction prior to the trial. Accordingly, the trial court’s denial of Williams’ motion for new trial on the ground of ineffective assistance of counsel was not clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

Judgment affirmed.

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


text:
    A95A0563.
    LOTHRIDGE v. FIRST NATIONAL BANK OF GAINESVILLE.
    (458 SE2d 887)
   Ruffin, Judge.

Jerry Lothridge appeals from the trial court’s order granting partial summary judgment to First National Bank of Gainesville (“the bank”). The trial court ruled that Lothridge is liable to the bank for debts secured by a personal guaranty he signed, but that the amount of the debts had not been determined. On appeal, Lothridge contends that genuine issues of material fact remain as to whether he is liable under the guaranty. Because we find the court correctly determined that Lothridge is liable to the bank under the guaranty, we affirm.

In 1987, Lothridge and Joe Vandegriff formed Mountain Lakes Resort, Inc. (“Mountain Lakes”), to purchase a resort known as Mountain Shadows. Mountain Lakes obtained financing of approximately $1,800,000 from the bank to purchase the resort and provide operating capital. In connection with the loan, Lothridge signed a personal continuing guaranty for repayment of 26.7 percent of “all present and future liabilities of [Mountain Lakes] to the Bank. ...” The guaranty further provided that “termination [of the guaranty] shall not release [Lothridge] from liability for payment of (i) any and all liabilities . . . then in existence. ...” Lothridge also executed a security deed to the bank on farm land he owned to serve as additional collateral for the bank’s loans to Mountain Lakes.

On October 6, 1988, after disputes arose between Lothridge and other owners of Mountain Lakes, Lothridge filed a lawsuit. On February 23, 1989, Lothridge sent a letter to the bank notifying it that he would “not act as guarantor of any further indebtedness incurred by Mountain Lakes. ...” Thereafter, the parties to that suit entered into settlement negotiations, and on January 3,1990, the court (“1990 court”) entered judgment based on the parties’ settlement agreement (“1990 consent judgment”). Although the bank was not a party to that lawsuit, it agreed to the terms of the consent judgment because it was affected by some of the terms. When Mountain Lakes later defaulted on loan payments to the bank, the bank filed the instant action against Lothridge on the guaranty. Lothridge answered the complaint raising several affirmative defenses in the nature of release and discharge and filed a counterclaim against the bank.

1. Lothridge contends there remain genuine issues of material fact as to whether his termination of the guaranty affected his liability on loans made before termination. Because the guaranty contemplated a future course of dealing between the parties, the guaranty in this case was a continuing guaranty. See 38 CJS 1142, Guaranty, § 7. As such, it was not limited to a single transaction, but contemplated a series of divisible loans to Mountain Lakes and corresponding guaranties by Lothridge. See id. See also 1 Williston, The Law of Contracts, § 5:11 (4th ed. 1990). Both parties agree that Lothridge properly terminated the guaranty by written notice to the bank. But contrary to Lothridge’s contentions, when he terminated the guaranty, that termination was effective only as to future loans made under the guaranty; the guaranty was not terminated as to loans and guaranties already extended. See Fidelity Nat. Bank v. Reid, 180 Ga. App. 428 (1) (348 SE2d 913) (1986). See also 38 AmJur 1062, Guaranty, § 60. Accordingly, the termination did not relieve Lothridge of liability to the bank for debts incurred by Mountain Lakes before termination. See W.E. Heller & Co. v. Aetna Business Credit, 158 Ga. App. 249 (280 SE2d 144) (1981). Similarly, because the guaranty was not terminated as to loans and guaranties already made, Lothridge is bound by the terms of the guaranty as to those transactions and is not entitled to assert any defenses he waived in the guaranty. See Davis v. Concord Commercial Corp., 209 Ga. App. 595 (2) (434 SE2d 571) (1993).

2. Lothridge also contends there are facts showing he was discharged from liability under the doctrine of increased risk. Lothridge argues he was discharged because the bank increased his risk by (a) increasing the amount of the loans to Mountain Lakes, (b) releasing other guarantors, and (c) releasing other collateral it held as security for the loans. We disagree.

(a) Although the bank continued to loan money to Mountain Lakes, it is uncontroverted that the bank was attempting only to recover unpaid loans made to Mountain Lakes prior to the time Lothridge terminated the guaranty. The extension of additional loans to Mountain Lakes after that time does not affect Lothridge’s risk under the guaranty. See Evans v. Merrill Lynch &c., 213 Ga. App. 808 (1) (446 SE2d 215) (1994).

(b) Neither is Lothridge discharged due to the bank releasing other guarantors. The guaranty provides that the bank may release any other obligor, guarantor or surety “without in any way affecting the obligation of [Lothridge]. ...” Accordingly, Lothridge consented in advance to the bank releasing any other guarantors, which consent operates as a waiver of his right to assert that the release resulted in his discharge. See Smith v. Great Southern &c., 184 Ga. App. 433 (1) (361 SE2d 847) (1987).

(c) Likewise, because Lothridge consented in the guaranty to the bank releasing other collateral, he waived his right to assert that the release of collateral resulted in his discharge. See Panasonic Indus. Co. v. Hall, 197 Ga. App. 860 (399 SE2d 733) (1990).

3. Lothridge contends that even if he was not discharged from liability under the guaranty, a jury issue remains as to whether it was the parties’ intention in settling the earlier lawsuit to reduce the amount of his guaranty to $450,000. Paragraph 2 of the 1990 consent judgment provides in part that the farm land “is presently subject to a deed to secure debt. . . . Upon approval by the [bank], the conditioned indebtedness held by the [bank] on the [farm] shall be reduced to a deed to secure debt in the amount of [$450,000]. . . . This property shall not be used as collateral on any other debt which has been or may be incurred by Mountain Lakes or any other Defendant.”

(a) Lothridge first argues this language clearly evidenced the bank’s intention to reduce the amount of his personal guaranty to $450,000. In support of his argument, Lothridge points to the language contained in the introductory recitals of the 1990 consent judgment generally providing that it was the intention of the parties to resolve all claims between them. Lothridge argues that to the extent this language is ambiguous, he is entitled to have a jury decide its meaning.

The meaning of the settlement terms incorporated into the 1990 consent judgment must be determined in accordance with the usual rules of contract construction. Hortman v. Childress, 162 Ga. App. 536 (292 SE2d 200) (1982). Under these rules, if the language is clear and unambiguous, no construction is required or even permissible by the trial court. If construction is required, then the first rule is to determine the intentions of the parties. Darby v. Mathis, 212 Ga. App. 444 (1) (441 SE2d 905) (1994). In making such a determination, it is proper to consider correspondence between the parties leading up to the contract. Romine, Inc. v. Savannah Steel Co., 117 Ga. App. 353 (1) (160 SE2d 659) (1968). If the intentions of the parties differ and the meaning placed on the contract by one party is known to the other party at the time of execution, such construction will control. OCGA § 13-2-4. See also Florence v. State Hwy. Bd., 57 Ga. App. 752 (196 SE 86) (1938).

Applying these rules to the 1990 consent judgment, we find no error in the trial court’s construction. First, the plain and unambiguous language of Paragraph 2 of the 1990 consent judgment refers only to reducing the amount of Mountain Lakes’ indebtedness secured by the deed on Lothridge’s farm land; there is nothing in Paragraph 2 of the judgment referencing the parties’ intention to reduce the amount of Lothridge’s personal guaranty.

Furthermore, even if we were to assume an ambiguity existed, the trial court properly determined the intention of the parties according to the above rules. Shortly before entry of the 1990 consent judgment, the bank sent a letter to the trial judge stating its understanding that the settlement affected only the amount of the security deed and that there was no agreement between the parties that Lothridge would be released from his personal guaranty. The bank sent a copy of this letter to Lothridge’s attorney. The bank’s intention, as expressed in the letter, is not only consistent with the plain language of Paragraph 2, but since it was known to Lothridge at the time the 1990 court issued the 1990 consent judgment and the bank consented to the terms, that is the meaning which controls. See OCGA § 13-2-4.

(b) Lothridge also assigns error to the trial court’s construction of language in the 1990 consent judgment providing that “[a]ll future payments made to the [bank] on the indebtedness of Mountain Lakes shall be applied first toward the reduction of the balance of the aforementioned [security deed on the farm land] until such time as the Security Deed has been satisfied and released of record.” However, the application of payments against the balance of the security deed is not an issue in this case, and aside from the arguments made by Lothridge that we rejected above, neither the parties nor the trial court has shown how this provision is related to the present lawsuit. In its complaint, the bank did not seek relief under its security deed; it sought only to recover amounts due from Lothridge under his personal guaranty. The provision at issue does not provide for application of payments to the guaranty balance. Accordingly, the provision at issue was not before the trial court, and that portion of its order addressing the provision must therefore be stricken. See generally Brown v. Tomlison, 246 Ga. 513 (272 SE2d 258). (1980).

4. Since we concluded in Division 3 that Lothridge’s liability under the guaranty was not affected by the 1990 consent judgment, it is not necessary for us to consider Lothridge’s assertions that the judgment constituted a novation and release of his obligations under the guaranty. Lothridge’s argument that the trial court erred by granting the bank summary judgment on his counterclaim for breach of the settlement agreement and fraud is similarly without merit. Because we have already concluded that the bank did not agree to reduce Lothridge’s liability under the guaranty, its refusal to do so would not constitute fraud or a breach of the agreement.

Moreover, Mountain Lakes’ agreement to satisfy the farm land security deed after three years is not an obligation that Lothridge can unilaterally delegate to the bank. We know of no authority supporting such a proposition, and Lothridge has cited none.

5. Lothridge next contends the trial court erred in granting the bank summary judgment on his claim that the bank breached its duty of good faith and fair dealing. Lothridge generally contends that the bank breached these duties by taking action which frustrated his ability to collect money owed to him by Mountain Lakes under the 1990 consent judgment. We disagree.

The record in this case reveals that the bank and Lothridge were involved in nothing more than an arm’s length relationship. See First Union Nat. &c. v. Gurley, 208 Ga. App. 647 (1) (431 SE2d 379) (1993). Under such relationship, Lothridge was under a duty to exercise ordinary diligence to protect his own interest, and the bank’s primary duty was to protect the assets of its depositors and its interests in the security for its loans. See Gurley id. See also First Fed. &c. of Brunswick v. Fretthold, 195 Ga. App. 482 (394 SE2d 128) (1990). Although Lothridge has cited to authority that imposes a fiduciary duty on banks under certain circumstances, there is nothing in the record to suggest the bank owed such a duty to Lothridge in this case. See, e.g., Fretthold, id. Moreover, Lothridge has provided no authority suggesting that the bank was under a duty to ensure Mountain Lakes could satisfy its debts to him, especially where such action could be in derogation of the bank’s interest in protecting the security for its loans. Accordingly, we find no error.

Decided July 5, 1995

Webb, Tanner & Powell, A. Louise Tanner, Anthony O. L. Powell, Ralph L. Taylor III, for appellant.

Stewart, Melvin & Frost, J. Douglas Stewart, Davis, Matthews & Quigley, Ron L. Quigley, for appellee.

6. Similarly, the trial court properly granted the bank summary judgment on Lothridge’s claim that the bank tortiously interfered with his contract rights against Mountain Lakes under the 1990 consent judgment. In support of his assertion that the trial court erred, Lothridge relies on the same conduct referred to in Division 5, that the bank frustrated his ability to collect money from Mountain Lakes. But as we determined there, the bank was entitled to take action to protect the assets of its depositors and the security for its loans. See id. To establish a claim for tortious interference with contractual relations, Lothridge was required to show, among other things, that the bank acted improperly, without privilege and maliciously with the intent to injure. Green v. Johnston Realty, 212 Ga. App. 656 (4) (442 SE2d 843) (1994). Under such a claim “maliciously means any unauthorized interference or any interference without justification or excuse.” Id. at 660. Because the bank was justified in taking the action of which Lothridge complains, we find no error. See id.

Judgment affirmed in part, reversed in part and remanded with instructions.

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


author: Andrews, Judge.

text:
    A95A0857.
    NORTH DECATUR COURTYARDS CONDOMINIUM ASSOCIATION, INC. v. CASEY.
    (458 SE2d 676)
   Andrews, Judge.

North Decatur Courtyards Condominium Association (NDCCA) appeals the state court’s order granting William Casey’s motion for partial summary judgment and denying NDCCA’s motion for partial summary judgment.

This case involves a dispute over the status of a lien placed on a condominium unit for unpaid condominium assessment fees. The issue is whether Casey, who acquired title to the condominium in question through foreclosure of a secondary purchase money mortgage, is liable for the unpaid assessments of the person foreclosed upon.

On June 28, 1990, Carrie Gray bought Unit 207B (“the unit”) of North Decatur Courtyards from Harry Gaede. The warranty deed conveying the unit to Gray was dated June 28, 1990, and was recorded in the Deed Book in DeKalb County Records on July 30,1990. Gaede took back a promissory note from Gray pursuant to a secondary purchase money mortgage on the unit. This secondary mortgage was also dated June 28, 1990, and was recorded on July 30, 1990, in the Deed Book in DeKalb County Records. Gaede assigned the promissory note and secondary mortgage to Casey on June 28, 1990. This assignment was recorded in the Deed Book in DeKalb County Records on August 20, 1990.

On May 7, 1991, Casey foreclosed on the secondary mortgage. Casey then bought the unit at the foreclosure sale that same month.

NDCCA sued Casey for the assessments which had become past due while Gray owned the unit. NDCCA contended that, although OCGA § 44-3-80 (f) states that anyone acquiring title to a unit as a result of foreclosure of a first priority mortgage or a secondary purchase money mortgage shall not be liable for any assessments past due at the time of foreclosure, OCGA § 44-3-109 (a) (4), as amended July 1, 1990, applied to this case.

OCGA § 44-3-109 (a) (4) provides that all assessments due and payable from the unit owner constitute a lien against the unit superior to all other liens, except “[t]he lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit.” The language “provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit” became effective as of July 1, 1990.

The trial court granted Casey’s motion for partial summary judgment as to his liability for all assessments that became due prior to his foreclosing on the unit. The trial court found that OCGA § 44-3-109 (a) (4) did not apply in this case because the secondary purchase money mortgage was made prior to July 1, 1990. The court further found that OCGA § 44-3-80 (f) was applicable to this case, and therefore, Casey was not liable for any assessments that became due prior to the date he acquired title to the unit, nor was the unit subject to a lien for any assessment chargeable to the unit before Casey acquired title.

NDCCA cites the following enumerations of error in its appeal from the trial court’s decision granting Casey’s motion for partial summary judgment and denying its motion for partial summary judgment.

(a) NDCCA claims that the trial court’s decision was erroneous in that it ignored the mandate of Casey v. North Decatur Courtyards Condominium Assn., 213 Ga. App. 190 (444 SE2d 361) (1994).

(b) Secondly, NDCCA claims that the court erred in granting summary judgment by finding that OCGA § 44-3-80 (f) unmodified by and in isolation from OCGA § 44-3-109 (a) (4) is applicable to this case.

(c) NDCCA claims that the trial court erred by denying its motion for partial summary judgment which argued that Casey was liable for and the condominium unit was subject to a lien for the assessments chargeable to the subject unit for the period prior to foreclosure of the secondary purchase money mortgage originally made payable to the “seller of the unit.”

1. NDCCA claims that because of this court’s holding in Casey, supra, the trial court erred when it found that the date on which the mortgage was made was the effective date for purposes of determining whether the amended statute should apply. In Casey, the issue was whether or not Casey was liable for assessments which became due between March 22, 1990, when he sold the unit, and October 7, 1991, when he recorded the deed. This court affirmed the trial court’s order granting NDCCA’s motion for summary judgment as to Casey’s liability. The court based its decision on the fact that the by-laws of the condominium association defined “owner” for purposes of determining who was liable for assessments, as “record title holder of a unit within the condominium, but shall not mean a mortgage holder.” Casey, supra at 191. The court reasoned that it was necessary for the association to have a means of identifying who was liable for assessments in order to facilitate fee collection. Id.

But, as Casey correctly argues, that is not the issue in this case. There is no dispute as to who the owner of record of the unit was for the time period in question. Gray was the undisputed owner of record of the unit. Further, the issue in this case is whether an amendment to a statute is applicable to a secondary purchase money mortgage made before the amendment took effect, but not recorded until after the amendment’s effective date. NDCCA argues that Casey states that public policy mandates allowing the recording date of the mortgage be the effective date so that associations can determine who will be liable for assessments.

NDCCA stretches the public policy dictum in Casey too far when it claims that because the case holds that the association was entitled to rely on the by-laws’ definition of owner as the “record title holder” for purposes of assessment, the trial court in this case was required to find that the effective date of the secondary purchase money mortgage, for purposes of the statutory amendment, was the date it was recorded and not the date it was entered into. The facts in the previous case are totally different from these facts, and further, NDCCA’s main contention, a public policy argument, relies on dictum and not the holding in that case. Accordingly, the trial court did not err in not following this court’s decision in Casey, supra, when it granted Casey’s motion for partial summary judgment.

2. Next, NDCCA contends that the trial court was in error when it found that the 1990 amendment to OCGA § 44-3-109 (a) (4) was not applicable in this case. As discussed above, NDCCA argues that the recording date of the secondary purchase money mortgage, July 30, and not the date on which the mortgage was made, June 28, is the operative date for determining whether OCGA § 44-3-109 (a) (4) applies in this case. NDCCA contends that public policy considerations require that the association be able to rely on the public record in order to determine liability for assessments. Casey, supra at 191. This court agreed that it was necessary for the association to be able to determine the record owner of the unit, as that was the person who was to be billed for the assessments. Id. But, in this case, the secondary purchase money mortgage was recorded before any of the assessments became overdue, and more than eight months before the foreclosure which created this issue. This is not a case about being able to determine who is liable for overdue assessments. The record owner is liable for the assessments. This case involves the determination of the priority of a lien on the unit, which, in turn, requires determining whether a statutory amendment is applicable or not.

On this issue, NDCCA cites to no legal theory for, or case law in support of, its contention that the effective date of the mortgage should be the date it was recorded and not the date it was signed. There is, however, case law to the contrary. “In examining a limitation over, we must look at it at the time the instrument creating the limitation takes effect. If by deed, then at the time the deed was made.” Lanier v. Lanier, 218 Ga. 137, 140 (126 SE2d 776) (1962). A deed is valid between the original parties whether it is recorded or not. “It is only as against third persons, acting in good faith without notice, that recording is required.” Corbin v. Shadburn, 49 Ga. App. 91 (174 SE 259) (1934). In this case, the mortgage was recorded prior to any overdue assessments or foreclosure, and there is no argument that NDCCA was acting without notice. Therefore, since NDCCA does not cite to any legal authority for their contention that the deed did not become effective for purposes of the statute until it was recorded, we find that the trial court did not err in finding that because the deed was made on June 28, 1990, OCGA § 44-3-109 (a) (4) does not apply in this case. Accordingly, the trial court did not err when it granted Casey’s motion for summary judgment.

Decided June 13, 1995

Reconsideration denied July 6, 1995.

Lipshutz, Greenblatt & King, Randall M. Lipshutz, Timothy L. Sitz, for appellant.

Storey & Obenschain, Stuart M. Neiman, for appellee.

3. Because of our holding in Division 1, we need not discuss the third enumeration of error.

Judgment affirmed.

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

       The opinion stated that, “[b]ecause of these policy concerns, associations must be able to rely on the public record to identify parties who are liable for the assessments.” Casey, supra at 191.


text:
    A95A0844.
    THOMAS v. THE STATE.
    (458 SE2d 897)
   Andrews, Judge.

Appellant Eddie Thomas appeals from convictions of conspiracy to defraud the state and of theft by taking. Thomas seeks a reversal of these convictions on the grounds that the trial court’s charge to the jury was confusing and because the court did not permit Thomas’s counsel to ask voir dire questions about whether prospective jurors had an opinion regarding the guilt or innocence of appellant.

1. Thomas claims that the trial court erred in its charge on the credibility of witnesses because the charge contained two distinct conflicting propositions regarding Thomas’s statements that would leave the jury confused and unable to render an intelligible verdict. The trial court gave a general charge on credibility of witnesses, which was almost verbatim from the Suggested Pattern Jury Instructions, Volume II, Criminal Cases. The court also gave a charge on custodial statements of defendants, again almost verbatim from the Suggested Pattern Jury Instructions, Volume II, Criminal Cases. Thomas’s trial counsel objected to the court’s instruction, “You should consider with great care and caution the evidence of any statement made by the defendant,” claiming that the instruction was confusing because the jury might have believed that it referred to the credibility of Thomas’s trial testimony rather than to a statement he made while in custody.

In response to the objection, the court brought the jury back and clarified the charge, distinguishing between a defendant’s testimony at trial and his statements while in custody. The court explained that only Thomas’s custodial statements should be considered “with great care and caution” and that the credibility of his statements on the witness stand should be considered by the same standard used for all other witnesses’ testimony. The trial judge stated: “When any witness testifies here at trial on the stand, the rules for governing the believability or credibility of the witnesses are the same.”

If the jury is given credit for ordinary intelligence, instructions that are not confusing and prejudicial do not constitute reversible error. Dukes v. State, 213 Ga. App. 701 (446 SE2d 190) (1994). Here, the instructions to the jury came directly from the Suggested Pattern Jury Instructions. Further, the trial court took steps to ensure that the jury clearly understood the difference between the charge on the general credibility of witnesses and the charge on the credibility of a defendant’s statements while in custody by calling the jury back and clarifying the difference between the two charges. Therefore, even if the original instructions were confusing to the jury, the clarifying instructions remedied the confusion. Thus, the first enumeration of error has no merit.

2. Thomas also claims that the trial court abused its discretion in its conduct of voir dire because Thomas’s trial counsel was not permitted to ask the jurors questions about presumption of innocence and reasonable doubt or about the kinds of books the jurors read or the television programs and movies they watched.

OCGA § 15-12-133 states that both defense counsel and the State “shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including . . . any fact or circumstance indicating any inclination, leaning, or bias which the juror might have.” However, the limitation placed on counsel in questioning the jury in voir dire under OCGA § 15-12-133 lies largely within the sound discretion of the trial court, and the appellate courts should not interfere with the exercise of that discretion unless it has been “manifestly abused.” White v. State, 230 Ga. 327, 337 (196 SE2d 849) (1973).

Technical legal questions concerning the presumption of innocence are a subject for instruction by the court and are not a proper subject for voir dire questioning. Mills v. State, 137 Ga. App. 305, 307 (223 SE2d 498) (1976). Questions about the presumption of innocence and reasonable doubt may be prohibited. Anderson v. State, 169 Ga. App. 729, 731 (314 SE2d 735) (1984). Also, a trial court may exclude questions about books jurors have read or movies and television programs jurors have seen. Alderman v. State, 254 Ga. 206 (6) (327 SE2d 168) (1985); Spivey v. State, 253 Ga. 187, 193 (319 SE2d 420) (1984).

There is no evidence that the trial court “manifestly abused” its sound discretion in limiting the scope of voir dire. Thomas’s counsel was not prevented from determining whether the jurors were biased or impartial, but rather was restricted from asking improper questions. Thus, the second enumeration of error has no merit.

Judgment affirmed.

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

Decided July 6, 1995.

Frederick M. Scherma, for appellant.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, for appellee.


text:
    A95A0983.
    JONES v. THE STATE.
    (458 SE2d 894)
   Andrews, Judge.

Jones appeals from the judgment entered following a jury verdict finding him guilty of burglary.

On June 7,1994, Jones was discovered inside the Grace Manufacturing Company building by one of the building’s tenants, Mr. Langston. Langston testified that he saw someone dragging trash cans across the floor and called the police. When the police arrived, they found Jones inside the building and arrested him, charging him with burglary.

The evidence at trial showed that the burglar bars on the outside of a window in the building were pried loose and a large trash can filled with tools was directly underneath the window. The police also found several five-gallon buckets filled with power tools inside the building.

One of the arresting officers testified that after he was taken into custody, Jones told the officers that drug dealers were holding his girl friend and his child hostage at a house on North Avenue. The officer said that Jones told them he had broken into the building to steal tools to pawn in order to pay the drug dealers money he owed them for dope. Jones claimed that the drug dealers threatened to hurt the woman and her child if Jones did not take enough tools to pay what Jones supposedly owed them.

The officers then put Jones into a patrol car and went to the house on North Avenue where Jones claimed the drug dealers were holding the hostages. But, when they arrived at the house, they were unable to find anyone matching the description Jones gave of his girl friend, the child, or the drug dealers.

There was evidence at trial of other, similar crimes. In November 1992, officers found Jones pulling a “herbie-curbie” full of stolen frozen foods across Marietta Street. Also, that same month, an officer stopped Jones and discovered that his pickup truck was loaded with power tools stolen from the CSX Railroad property on Marietta Boulevard.

The jury found Jones guilty of burglary and the court sentenced him to ten years to serve five, with the balance probated. Jones appeals, bringing the following enumerations of error.

1. First, Jones claims that the trial court erred in denying his request to place the jurors in the jury box during voir dire. OCGA § 15-12-131 provides that it is the duty of the court, on the request of either party, to seat the jurors in the jury box in panels of 12 so they may be questioned by counsel. In Lett v. State, 160 Ga. App. 476 (287 SE2d 384) (1981), the court held that the trial court’s refusal to seat the jurors in the jury box for voir dire was erroneous as a matter of law, but did not reach the issue of whether the error was harmless. Lett, supra at 477. In Mathis v. State, 176 Ga. App. 362 (336 SE2d 299) (1985), the court again held that it was error to deny the request to place the jurors in the jury box, but in that case, the appellant was required to voir dire all of the prospective jurors en masse. Mathis, supra at 363. Further, the court found that the error was harmless in light of the overwhelming evidence of guilt. Id.

In the instant case, the trial court determined that voir dire would be facilitated by having the jurors seated in panels of 12 in the jury box and on benches behind the defense counsel’s table. Further, the court stated that not only would defense counsel have no problem in viewing the panels of jurors seated on benches behind defense counsel’s table, but, the panels seated on benches behind the rail would be closer than those seated in the jury box. Also, Jones’ attorney was not required to question the jurors en masse, but in panels of 12 as required by the statute. Therefore, there was no error. Perez v. State, 258 Ga. 343, 344 (2) (369 SE2d 256) (1988); Atha v. State, 198 Ga. App. 323, 324 (5) (401 SE2d 338) (1991). In any event, the evidence of guilt in this case was overwhelming, and thus, the error, if any, was harmless.

2. Secondly, Jones claims that he should be granted a new trial because he received ineffective assistance of counsel, which denied him his right to assistance under the Sixth Amendment of the United States Constitution. Specifically, Jones claims that his attorney did not conduct enough pretrial investigation. Jones argues that his attorney should have hired an investigator or investigated himself in order to find witnesses who could support Jones’ defense of coercion.

A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). Here, Jones must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66 (8) (410 SE2d 173) (1991). “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.]” The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992).

Decided July 6, 1995.

Ellis W. Peetluk, for appellant.

Lewis R. Slaton, District Attorney, Charles E. Rogers II, Carl P. Greenberg, Assistant District Attorneys, for appellee.

In this case, Jones has not established that he was denied reasonably effective assistance of counsel. At the hearing on Jones’ motion for new trial, defense counsel testified that Jones was unable to give him any names or addresses of witnesses who could support his claim of coercion. Defense counsel also testified that the coercion defense was not the only defense available to Jones and that he intended to show that the State could not prove Jones went in to steal anything because he never left with anything. Moreover, as the court stated at the hearing on Jones’ motion for new trial, there was no evidence that these witnesses ever existed, much less that they could have been located given the vague and differing descriptions Jones gave his trial counsel. The trial court pointed out that there was still, months later, no evidence that these witnesses ever existed. Therefore, Jones’ counsel was not ineffective for failing to go out and attempt to find these witnesses. Moreover, even if counsel’s failure to investigate did fall below the standard of effective representation, given the overwhelming evidence of guilt in this case, this failure was not likely to have produced a different outcome at trial. See Gross, supra at 233-234.

3. Thirdly, Jones claims that the trial court erred in denying his motion for a continuance and that because of this he was denied a fair trial. Jones claimed that because the trial court denied his motion for continuance, trial counsel did not have time to find the witness or witnesses who could support Jones’ story of coercion. As previously discussed, the trial court stated that it was doubtful whether or not these witnesses even existed, and therefore, the court was unwilling to grant a continuance.

“A motion for continuance based on absence of a witness is addressed to the sound discretion of the trial judge and an appellate court will not interfere unless it is clearly shown it has abused its discretion.” Ledford v. State, 173 Ga. App. 474, 476 (326 SE2d 834) (1985). In this case, Jones was not even able to identify any witnesses who would be called to testify, and therefore, the trial court did not err in denying Jones’ motion for continuance.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A0769.
    RIDDLE-BRADLEY, INC. v. RIDDLE et al.
    (459 SE2d 576)
   Beasley, Chief Judge.

Riddle-Bradley, Inc., a wholesale and retail office supply business, negotiated a sale of substantially all the company’s assets to Danka Industries, Inc. Thereafter, minority shareholders Bradley Riddle, Sr. and Bradley Riddle, Jr. filed a derivative action alleging breach of fiduciary duties by the majority shareholder. They also took the appropriate steps to exercise their dissenters’ rights under the Georgia Business Corporation Code (OCGA § 14-2-1302 et seq.). The dissenters and the corporation were unable to agree on the value of the shares, so the corporation petitioned the court to determine fair value in a proceeding authorized by OCGA § 14-2-1330.

Riddle-Bradley appeals from a summary judgment awarding the dissenting shareholders the amount they demanded for their shares because the corporation, without a written extension of time as provided for by OCGA § 9-11-6 (b) of the Civil Practice Act (CPA), failed to commence the valuation proceeding within the statutory period.

1. The dispositive issue is whether OCGA § 9-11-6 (b) applies before commencement of such a legal action.

The Georgia Business Corporation Code states, “If a demand for payment [of a dissenter’s estimated fair value of his shares plus accrued interest] remains unsettled, the corporation shall commence a proceeding within 60 days after receiving the payment demand and petition the court to determine the fair value of the shares and accrued interest. If the corporation does not commence the proceeding within the 60 day period, it shall pay each dissenter whose demand remains unsettled the amount demanded.” OCGA § 14-2-1330 (a). The CPA applies to appraisal proceedings. OCGA § 14-2-1330 (d). By its terms, the CPA provision governing extensions applies when, once a “proceeding” has been commenced, the CPA itself, Chapter 11 of Title 9, a notice thereunder, or a court order requires or allows an act to be performed within a certain time period. OCGA § 9-11-6 (b).

This court has held, however: “Granting extensions of time as permitted under certain circumstances by the Civil Practice Act does not apply to periods of time which are definitely fixed by other statutes. [Cit.]” McClure v. Dept. of Transp., 140 Ga. App. 564 (1) (231 SE2d 532) (1976) (notice appealing Department of Transportation’s petition and declaration of taking was properly dismissed as trial court is without authority to extend the period of time set by statute for filing such an appeal). The statutory scheme for exercising dissenters’ rights involves a tight timeline within which minority shareholders must exercise their right to force the corporation to repurchase their shares once certain corporate decisions trigger the right of dissent. OCGA § 14-2-1301 et seq, Within the scheme, all notices, demands, offers, and estimates of fair value are required to be made, in writing, within certain time periods. OCGA § 14-2-1320 et seq. Because the time for filing a petition for judicial appraisal is set by statute, the CPA does not enable the court to grant extensions of time upon the consent of parties or otherwise. The corporation’s failure to comply with OCGA § 14-2-1330 (a) by filing its petition for judicial appraisal within 60 days after receiving the minority shareholders’ OCGA § 14-2-1327 demand deprives the court of subject matter jurisdiction to reach the merits of the petition. See OCGA § 15-1-2; compare OCGA § 9-11-12 (h).

Decided June 22, 1995

Reconsiderations denied July 7, 1995

Shaw, Maddox, Graham, Monk & Boling, Virginia B. Harman, for appellant.

Jones, Byington, Durham & Payne, Frank H. Jones, Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, Smith, Price & Wright, S. David Smith, Jr., for appellees.

This analysis is confirmed by the fact that Georgia’s judicial appraisal statute is based on § 13.30 of the Model Business Corporations Act. According to the Official Comment to that section of the Model Act, the time periods established therein are “jurisdictional.” 3 Mod. Bus. Corps. Act Ann., § 13.30 (1994).

Accordingly, the trial court’s judgment was correct; a judgment or decision right for any reason will be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989).

2. In light of our holding in Division 1, we do not address appellant’s remaining arguments.

Judgment affirmed.

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


text:
    A95A0055.
    EASON PUBLICATIONS, INC. v. NATIONSBANK OF GEORGIA et al.
    (458 SE2d 899)
   Beasley, Chief Judge.

Eason’s comptroller, Merritt, embezzled close to $1 million, in part by forging the signature of Eason’s secretary/treasurer, Walsey, on a number of checks made payable to himself. Eason sought recovery from its banker, NationsBank f/k/a C&S Sovran Corporation, asserting several different claims. It appeals the grant of summary judgment to NationsBank. Central to resolution of the case is the operation of OCGA § 11-4-406, which governs the respective responsibilities of a bank and its customers regarding improper payments and examination of bank statements.

Comptroller Merritt’s duties included reconciling the monthly bank statements and supervising the payment of Eason’s bills. He in turn was supervised by secretary-treasurer Walsey and president Deborah Eason. Only those two and Elton Eason were established as authorized signatories to the checking account. Merritt served as the primary day-to-day contact between Eason and the bank.

Merritt’s forgeries, totaling 188 checks, spanned 1987 to December 1991 when he was fired. Some checks would have overdrawn Ea-son’s account but for additional funds deposited at Merritt’s instruction by the bank on Eason’s line of credit. Although the bank’s usual practice was to accept transfer direction only from the persons authorized to sign on checking accounts, both Eason and the bank considered Merritt the person responsible for the mechanics of transfers. Transfers were shown on Eason’s monthly account statements and Eason showed changes in the line of credit in its financial reports. Merritt’s supervisors thought the transfers went to Eason operations in other states.

Before May 5, 1989, NationsBank would compare the drawers’ signatures on Eason checks to the authorized signatures on file. After that date the bank used a “bulk filing” system for processing commercial checks, which remained in place through the remainder of Merritt’s forgery. Under this system, the bank compared signatures only on checks for $25,000 or more. The bank chose this threshold after an informal review of other local banks revealed that some banks had similar policies with thresholds between $2,500 and $40,000, although some banks verified all signatures. The bank did not inform its customers of this change, which affected over 98 percent of commercial checks.

After the system was instituted, the bank paid 151 checks forged by Merritt, totaling over $770,000. Because none of the checks were for $25,000 or more, no signature was examined. A document expert testified that the forgeries were easy to detect.

Eason’s suit alleged negligence, fraud, violation of the Fair Business Practices Act, and breach of contract. The order granting summary judgment specifically addressed all causes of action except breach of contract.

With this background, we turn to the issues raised by the appeal.

1. A bank may charge its depositors only for those items “properly payable.” OCGA § 11-4-401 (1). It may not charge an account for a forged check and is, in general, strictly liable for paying on a forged check. Trammell v. Farmers & Merchants Bank, 170 Ga. App. 347, 348 (1) (317 SE2d 323) (1984). When it does charge a customer for an improperly paid item and sends the customer a statement of account showing payment, the responsibilities and liabilities of the bank and customer are governed by OCGA § 11-4-406. Eason asserts that the court misconstrued that Code section.

The customer “must exercise reasonable care and promptness” to discover forgeries and notify the bank, OCGA § 11-4-406 (1), and in certain circumstances, the bank will not be liable for forgeries if the customer did not fulfill these duties. OCGA § 11-4-406 (2). The bank will remain liable, however, if both it and the customer failed to exercise reasonable care. OCGA § 11-4-406 (3). Regardless of which party failed, the bank is not liable for any forgeries the customer does not report to the bank within 60 days of being sent a statement upon which those forgeries are reflected. OCGA § 11-4-406 (4).

These provisions operate similarly to a statute of limitation and protect the bank from facing suit over forgeries for an indefinite period of time. Decatur Fed. Sav. & Loan v. Litsky, 207 Ga. App. 752, 753 (1) (429 SE2d 300) (1993). When OCGA § 11-4-406 is followed properly, the bank cannot be held liable for any forgery shown on a statement it sent more than 60 days before the customer reports the forgery. As Eason correctly notes, however, to avail itself of this cutoff, the bank must first give the customer a statement showing items paid “in good faith.” Eason contends the bank did not pay the forged checks in good faith.

“Good faith” is defined as “honesty in fact in the conduct or transaction concerned.” OCGA § 11-1-201 (19). Contrary to Eason’s contention, issues of good faith do not always present jury questions. The facts of a case determine when it is possible to declare as a matter of law whether good faith can be established. Crosson v. Lancaster, 207 Ga. App. 404, 405-407 (4) (427 SE2d 864) (1993).

Eason argues that the bank exhibited lack of good faith by not informing its customers of the rule change on signature verification, by agreeing to “accept and pay [those checks] bearing the signature or signatures of authorized persons” and then not checking those signatures, by shifting all practical responsibility for forgery detection to the customer, by allowing Merritt to place funds into the checking account from the line of credit, and by arranging personal loans for Merritt.

These actions do not constitute evidence that the bank paid the forged checks without “honesty in fact.” OCGA § 11-1-201 (19). The transactions regarding which lack of good faith must be shown are paying the checks and debiting Eason’s account. There is no evidence that the account statements did not reflect “items paid in good faith,” as required by OCGA § 11-4-406 (1). The 60-day maximum set by OCGA § 11-4-406 (4) (a) applies so that summary judgment was proper as to the checks reported on statements sent more than 60 days before Eason reported the forgeries, leaving 22 checks totaling $88,499.50 in question.

The bank contends Eason failed to exercise ordinary care in examining its statements. Eason’s degree of care is irrelevant if Eason can show that the bank failed to exercise ordinary care in paying the checks. OCGA § 11-4-406 (3). It is undisputed that the bank did not verify the signatures on any forged checks after May 5, 1989, including the last 22. That alone is sufficient to raise a factual issue as to the bank’s exercise of ordinary care, although ordinary care is a preliminary question of law in this case because action “consistent with ... a general banking usage . . . prima facie constitutes the exercise of ordinary care.” OCGA § 11-4-103 (3). The bank contends that “bulk filing” was a general banking practice when the 22 checks were paid.

Application of OCGA § 11-4-103 (3) does not entitle Nations-Bank to summary judgment. Even if the bank showed conclusively that it complied with local industry standards, making a prima facie showing simply shifts the burden to Eason to produce rebuttal evidence that the bank did not exercise ordinary care. See Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 705 (2) (420 SE2d 756) (1992). Ea-son did so by presenting expert opinion that the verification procedure used was unreasonable.

Additionally, the evidence does not establish that NationsBank was acting consistently “with general banking usage.” During the period in which the last twenty-two checks were presented for payment, signature verification procedures for commercial checking accounts at five local banks varied from checking all signatures to checking only those over $40,000. It cannot be determined as a matter of law that NationsBank’s policy was consistent with a “general usage” when that usage was so varied.

Eason notes that other states have declared a bank’s failure to verify signatures on checks under a certain amount to be negligence as a matter of law. See McDowell v. Dallas Teachers Credit Union, 772 SW2d 183 (Tx. App. 1989); Medford Irrigation Dist. v. Western Bank, 676 P2d 329 (Or. App. 1984). Georgia law, however, does not require such a statement. A jury must determine whether Nations-Bank’s verification procedures constituted ordinary care as to those last 22 checks.

2. Eason also asserts NationsBank is liable under the Fair Business Practices Act, OCGA § 10-1-390 et seq., for misrepresenting the “standard, quality, or grade” of its services. OCGA § 10-1-393 (b) (7). Such a misrepresentation is a violation of the FBPA “by way of illustration only.” OCGA § 10-1-393 (b). The FBPA is violated by “[ujnfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce.” OCGA § 10-1-393 (a).

NationsBank contends the Act does not cover the commercial checking account involved here. An act or practice that is introduced to the stream of commerce outside the consumer marketplace is not directly regulated by the FBPA. Benchmark Carpet Mills v. Fiber Indus., 168 Ga. App. 932, 934 (311 SE2d 216) (1983). Since Nations-Bank’s commercial checking accounts were not offered to consumers, its practices concerning those accounts are outside the consumer marketplace, and the FBPA does not apply. Id.; accord Alonso v. Parfet, 171 Ga. App. 74, 77 (2) (318 SE2d 696) (1984).

3. Eason also argues NationsBank fraudulently concealed its signature verification procedures. OCGA § 7-1-350 requires a bank to notify its customers about any changes in its rules “governing deposits or withdrawal of deposits,” and similar language is found in the account agreement. NationsBank contends that despite this it had no duty to disclose the change in the verification level.

“ ‘Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.’ OCGA § 23-2-51 (b). Nondisclosure may provide the basis for constructive fraud where a party is under an obligation to communicate. OCGA § 23-2-53. ‘The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case,’ [OCGA § 23-2-53], and whether the particular circumstances of a case give rise to an obligation to disclose will generally be a jury question. [Cit.]” First Union Nat. Bank v. Davies-Elliott, Inc., 207 Ga. App. 791, 793 (2) (429 SE2d 161) (1993). Given the statute and the account agreement, it appears NationsBank was obligated to disclose the change in verification procedures.

Duty to disclose is not, however, the only element that must be shown to establish constructive fraud. “ ‘The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by [the] plaintiff, and damage to [the] plaintiff.’ ” Baldwin v. Roberts, 212 Ga. App. 546, 547 (2) (442 SE2d 272) (1994). There is no evidence that the bank refrained from informing its customers in order to induce them to take or refrain from taking any certain action. The only evidence concerning the bank’s intention was in response to an interrogatory, that it did not inform its depositors “because publication of such information would not be in the best interests of NationsBank or its depositors.” The expert in check verification practices in banks around the United States deposed that banks refrain from making this public so as not to encourage forgery. It was his opinion that making this public would increase forgeries. He also deposed that signature verification did not reveal forgeries, so that although not doing so produces a cost savings, the reason for not verifying every signature is that it is futile. The element of inducement is not sufficiently grounded in evidence to present a claim of fraud. The absence of evidence as to this essential element of Eason’s fraud compels the conclusion that the court was correct in granting summary judgment to the bank on the issue. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

Decided July 7, 1995.

Goodman & Goodman, Dale R. F. Goodman, Donald J. Goodman, for appellant.

Sutherland, Asbill & Brennan, Richard G. Murphy, Jr., Ann G. Fort, for appellees.

4. Eason also contends the court improperly failed to open certain sealed depositions before awarding summary judgment. The court stated in its order that it had read “all materials submitted by the parties in connection with this motion.” There is no evidence that the only copies of the depositions at issue were those now appearing in the record with a notation “opened for appeal.” Additionally, the statements in the depositions which Eason contends create material issues of fact do not do so.

5. Although the court did not address Eason’s claim for breach of contract, its order was clearly a grant of complete summary judgment. As Eason has not supported the breach of contract claim by argument or citation of authority, it is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2). “Accordingly, summary judgment was properly granted as to [this claim].” Russell v. KDA, Inc., 206 Ga. App. 397, 400 (5) (425 SE2d 406) (1992).

Judgment affirmed in part and reversed in part.

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


author: McMurray, Presiding Judge.

text:
    A95A0118.
    FUEL SOUTH, INC. v. METZ.
    (458 SE2d 904)
   McMurray, Presiding Judge.

Fuel South, Inc., filed an action against Gail Bowen, d/b/a Bowen’s Grocery, alleging Bowen unlawfully converted 5,722 gallons of its gasoline by failing to pay for the fuel according to terms of “a consignment agreement whereby [Bowen] agreed to sell [Fuel South’s] fuel at her business known as Bowen’s Grocery Store.” Bowen denied the material allegations of the complaint and counterclaimed, alleging that Fuel South entered into a five-year agreement with her father to split the profits from the sale of the gasoline; that Fuel South duped her (after her father became physically incapacitated) into believing that this agreement was effective for a ten-year period and that, as a result of this deception, she overpaid Fuel South and is therefore entitled to a set-off in the amount of Fuel South’s conversion claim, plus $124.42 as recoupment. Bowen also seeks punitive damages based on Fuel South’s alleged fraudulent conduct and requests “reasonable attorney’s fees, costs and expenses of litigation necessary to defend [Fuel South’s] Complaint and pursue this Counterclaim. . . .”

Upon close of evidence at a jury trial, the trial court denied Fuel South’s motion for directed verdict as to Bowen’s claim for attorney fees, but reserved submitting this issue to the jury until a verdict was returned on the parties’ claims for conversion, fraud, set-off and recoupment. To this extent, the trial court did not charge the jury regarding the legal standard for measuring whether Bowen is entitled to attorney fees, costs and expenses of litigation. The jury, however, returned a special verdict pertinently awarding “attorney/court cost for [Bowen] in the amount of $4440.00.” We granted this discretionary appeal after judgment was entered on the jury’s verdict to consider Fuel South’s claim that the trial court erred in failing to grant its motion for directed verdict on Bowen’s claim for attorney fees, costs and expenses of litigation. Held:

1. Although Bowen does not state the basis of her claim for attorney fees, costs and expenses of litigation in her counterclaim, she indicates in her appellate brief that her demand is based on OCGA § 13-6-11 because Fuel South “caused unnecessary trouble and expense.” It is from this perspective that Bowen contends the jury’s award for “attorney/court cost” was authorized even though the trial court did not charge the jury on this aspect of her counterclaim. Specifically, Bowen argues that “the refusal to give a charge which merely embraces a simple issue of fact which the jury must know is involved in the case is not error.” She also reasons that “[i]t is inconceivable that the jury would have done any differently had they been given the simple instruction [she] requested . . . found in [OCGA §] 13-6-11 that attorney’s fees may be awarded where a party has caused unnecessary trouble and expense.” We do not reach the validity of the jury’s verdict insofar as it is outside the scope of the trial court’s jury instructions since we hold that the trial court erred in denying Fuel South’s motion for directed verdict as to attorney fees.

“When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to OCGA § 13-6-11 (Code Ann. § 20-1404) if a bona fide controversy clearly exists between the parties. Cf. Dubose v. Box, 246 Ga. 660, 668 (5) (273 SE2d 101) (1980). See also Ideal Pool Corp. v. Champion, [157 Ga. App. 380, 383 (3) (277 SE2d 753)]; Franchise Enterprises v. Ridgeway, [157 Ga. App. 458, 460 (2) (278 SE2d 33)]; Turner v. Wilmouth, 161 Ga. App. 2, 3 (2) (288 SE2d 839) (1982). Thus, in a case where bad faith is not at issue, attorney fees are not authorized under OCGA § 13-6-11 (Code Ann. § 20-1404) if the evidence shows that ‘a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue. Where [such a genuine dispute] is found,. . . the jury [would not be authorized] to award the expenses of litigation.’ Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 525 (191 SE2d 317) (1972).” Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 224 (6) (312 SE2d 386).

Decided July 7, 1995.

Kenneth E. Futch, Jr., for appellant.

T. Chris Hughes, for appellee.

In the case sub judice, Bowen does not assert bad faith as a basis for the recovery of attorney fees, costs and expenses of litigation. Her claim for attorney fees is based on an assertion that Fuel South “caused unnecessary trouble and expense.” The evidence adduced at trial, however, reveals the existence of a bona fide controversy over the terms of a verbal contract between Fuel South and Bowen’s father. To this extent, Bowen asserted that the verbal agreement was effective for a five-year term, and Fuel South asserted that the contract was effective for ten years. Since resolution of this genuine factual dispute was key to the parties’ opposing claims, a jury would not be authorized in awarding litigation expenses under OCGA § 13-6-11 based on Bowen’s claim that Fuel South “caused unnecessary trouble and expense.” See Latham v. Faulk, 265 Ga. 107, 108 (2) (454 SE2d 136), and Candler v. Wickes Lumber Co., 195 Ga. App. 239, 241 (1), 242 (b) (393 SE2d 99). Consequently, the trial court erred in denying Fuel South’s motion for directed verdict as to Bowen’s claim for attorney fees, costs and expenses of litigation. The case must therefore be remanded with direction for the trial court to strike that portion of the judgment awarding Bowen “attorney/court cost ... in the amount of $4440.00.”

2. We have considered Fuel South’s remaining enumerations of error and find them to be without merit.

Judgment affirmed in part and reversed in part.

Case remanded with direction. Andrews and Blackburn, JJ., concur.


text:
    A95A0260.
    THE STATE v. WILLIAMS.
    (458 SE2d 906)
   McMurray, Presiding Judge.

On October 26, 1993, defendant was indicted in the Superior Court of Fulton County for child molestation, aggravated child molestation and statutory rape. Less than six weeks later, defense counsel arranged with Clayton County law enforcement authorities for defendant to submit to a state-administered polygraph examination. Defense counsel, however, was not permitted to attend the polygraph examination, nor was he present when defendant was interrogated later by a detective who was not involved in administering the polygraph test. As a result, defendant gave the Clayton County detective incriminating information regarding conduct relevant to the crimes charged in the Fulton County indictment. Defendant’s attorney was thereafter allowed to withdraw and another attorney filed a motion to suppress on defendant’s behalf.

The evidence adduced at a suppression hearing reveals that defendant and his first attorney met with Detective John Derbyshire of the Clayton County Police Department at police headquarters on December 8, 1993, and discussed an agreement for defendant to submit to a state-administered polygraph examination. At this meeting, defense counsel advised defendant that “if he passed the polygraph, he would be released; and if not, the procedure would be [that defendant] would be booked into the county jail and [defense counsel] would make arrangements for bond.” Defense counsel then escorted defendant to the examination room and waited for the polygraph examiner, Sergeant Ronnie Keith Evans of the Clayton County Police Department. “When Sergeant Evans was ready, [defense counsel and defendant] went over the questions that were going to be proposed and just went through what the procedure would be. [Defense counsel] told [defendant] that during the course of the polygraph, that he was to answer the questions as briefly as possible and to volunteer no information.” Defense counsel then left the examination room and Sergeant Evans took over.

Sergeant Evans first had defendant execute forms indicating that defendant understood and waived his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694); that defendant freely and voluntarily consented to the polygraph examination and that defendant stipulated to the admissibility of any information gleaned during the polygraph test. Sergeant Evans then proceeded with his examination and, after over two hours of questioning and monitoring, he advised defendant that the polygraph results indicated that defendant was being deceptive. The sergeant then “asked [defendant] if he would tell. . . what he had done[, but defendant] refused to provide [Sergeant Evans] with any information.” According to Sergeant Evans, defendant only “advised that he had not done everything that he had been accused of doing, but he had not been completely truthful in that he had done some things.”

Defendant testified that Sergeant Evans pressed him hard for information after the polygraph examination even though he asked for his attorney several times. In contrast, Sergeant Evans testified that defendant asked for Detective Derbyshire after he advised defendant about the polygraph results and that, in compliance with this request, he escorted defendant to Detective Derbyshire’s office. Further, defendant insisted that he “asked for [his] attorney” again when he entered Detective Derbyshire’s office, but Detective Derbyshire testified that defendant then only “asked where his attorney was [and that he] advised [defendant that] his attorney had left.” In either case, however, it is undisputed that Detective Derbyshire began interrogating defendant without advising him of his “constitutional rights” and that defendant provided the detective with incriminating admissions relating to the crimes charged in the Fulton County indictment.

The trial court granted defendant’s motion to suppress based on a finding that Sergeant Evans went beyond the scope of the polygraph examination by questioning defendant after he “told the defendant that he didn’t pass and started questioning him.” This appeal followed. Held:

The State contends that the evidence is insufficient to support the trial court’s finding that defendant’s incriminating admissions were uttered outside the scope of the polygraph examination and (apparently) beyond defendant’s consent to submit to polygraph interrogation and his voluntary waiver of constitutional rights.

An appellate court must construe the evidence with an eye toward upholding the trial court’s findings and judgment when reviewing an order concerning a motion to suppress. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646). In the case sub judice, the evidence indicates that defendant only waived his constitutional rights in contemplation of a polygraph examination limited to questions that were approved by defense counsel. It also appears that defendant’s execution of the consent and waiver of rights forms was not just premised upon the State’s promise not to arrest defendant if he passed the test, but was also based on Sergeant Evans’s assurances (to defense counsel) that he would not go beyond the limited scope of the approved questioning and that he would not attempt to circumvent defense counsel’s directions for defendant “to answer the questions as briefly as possible and to volunteer no information.” Moreover, there is evidence which would authorize a finding that defendant did not knowingly, freely and voluntarily agree to submit to unfettered police interrogation outside the presence of his attorney and the scope of the polygraph examination. In this regard, it is undisputed that Detective Derbyshire did not independently advise defendant of his “constitutional rights” (he only asked defendant if Sergeant Evans had been over his constitutional rights) and defendant testified that he asked for his attorney several times before Detective Derbyshire began interrogating him. Under these circumstances, we cannot say that the trial court’s findings and conclusion were unsupported by any evidence. We must therefore affirm the trial court’s order granting defendant’s motion to suppress. Tate v. State, 264 Ga. 53, 54 (1), supra.

Decided July 7, 1995.

Lewis R. Slaton, District Attorney, Kenneth D. Feldman, Carl P. Greenberg, Assistant District Attorneys, for appellant.

Ted Johnson, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

       Although a two-way mirror was available for defendant’s attorney to view the polygraph examination, he was not permitted to confer with defendant or be present during the polygraph test. Sergeant Evans explained that “it’s always just me and the examinee.”

       It appears that defense counsel not only failed to watch the polygraph examination through the two-way mirror, he left the police station while defendant was in with Sergeant Evans and only advised Detective Derbyshire of his departure.

       See Johnson v. State, 208 Ga. App. 87 (1), 88, fn. 1 (429 SE2d 690), where this Court questioned the voluntariness of any polygraph interrogation where defense counsel is not permitted in the examination room during testing.


text:
    A95A0783, A95A0784.
    CITADEL CORPORATION v. ALL-SOUTH SUBCONTRACTORS, INC.; and vice versa.
    (458 SE2d 711)
   McMurray, Presiding Judge.

These appeals emanate from the same action which spawned an appeal in Citadel Corp. v. Sun Chemical Corp., 212 Ga. App. 875 (443 SE2d 489). The case originated in the trial court when Citadel Corporation (“Citadel”) brought an action against Sun Chemical Corporation (“Sun Chemical”) and others to recover sums allegedly due under construction contracts whereby Citadel agreed to build a manufacturing plant (“the plant”) and administration building for the predecessor of Sun Chemical. Sun Chemical then filed a counterclaim for “breach of contract, contending delay in completing the plant, defective floor coating and damage to [certain inventory, i.e.,] XLR plates.” Sun Chemical alleged (in the pre-trial order) that the “damages to XLR plates [were the result] of defective roofing. ...” Citadel responded with a third-party complaint against its roofing subcontractor, All-South Subcontractors, Inc. (“All-South”), seeking to recover any damages, costs and attorney fees related to defense of Sun Chemical’s counterclaim. This indemnity claim is based upon the following provision in the roofing subcontract: “[All-South] shall indemnify, hold harmless and defend [Citadel] against all claims, damages, losses and expenses, including attorney’s fees, arising out of or resulting from the performance of [All-South’s] Work under this Subcontract, provided that any such claim, damage, loss, or expense, (a) is attributable to . . . destruction of tangible property . . . and (b) is caused in whole or in part by any negligent act or omission of [All-South] or is caused by or arises out of the use of any products, material or equipment furnished by [All-South], regardless of whether it is caused in part by a party indemnified hereunder.”

After an extended trial, a jury returned special verdicts finding that Citadel is entitled to certain damages on its claims against Sun Chemical; that Sun Chemical is entitled to zero damages as to its counterclaim against Citadel for damage to the “XLR plates” and that Citadel is entitled to zero damages as to its third-party claim against All-South for indemnification. After entry of judgment on the verdicts, Citadel filed a direct appeal in Case No. A95A0783 and All-South filed a cross-appeal in Case No. A95A0784. Held-.

1. Citadel contends the jury’s failure to award attorney fees under its third-party claim against All-South for reimbursement of costs incurred in defending against Sun Chemical’s counterclaim is contrary to law and not supported by the evidence. Citadel argues that it is entitled to a judgment (upon remand to the trial court) for the total amount of its attorneys’ billings as reflected on itemized statements introduced into evidence at trial. In response and in its cross-appeal, All-South asserts that Citadel failed to meet its burden of demonstrating a specific entitlement to attorney fees under the indemnity agreement.

“ ‘ “An award of attorney fees is unauthorized if [Citadel] failed to prove the actual costs of [their attorneys] and the reasonableness of those costs. (Cit.)” Fiat Auto U.S.A. v. Hollums, 185 Ga. App. 113, 116 (5) (363 SE2d 312) (1987).’ Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606).” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2) (447 SE2d 83). In the cases sub judice, Citadel relies on billing statements submitted by its attorneys as proof of costs expended in defense of the XLR-plate counterclaim, but fails to point to the testimony of any party with personal knowledge of the services purportedly rendered and reported therein. Consequently, the billing statements constitute nothing more than “hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Penny packer’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257).” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32, supra. However, even assuming the billing statements are admissible as proof of the matters asserted therein, Citadel failed to distinguish between the costs attributable to fees incurred in defense of the XLR-plate counterclaim and those incurred in enforcing the indemnity agreement.

The indemnity clause in the roofing subcontract pertinently provides that “[All-South] shall indemnify, hold harmless and defend [Citadel] against all claims, damages, losses and expenses, including attorney fees, arising out of [All-South’s] Work under [the] Subcontract. . . .” This provision, however, does not provide for recovery of attorney fees and expenses incurred to enforce the indemnity agreement. Consequently, Citadel is not entitled to recover such costs. In order for Citadel to recover under the indemnity agreement, it must show the fees it claims are reasonable and prove them “with sufficient particularity to permit the [jury] to distinguish between time and expenses attributable to [recoverable fees for the XLR-plate counterclaim] and time and expenses attributable to [nonrecoverable fees incurred in enforcing the indemnity agreement].” Mitcham v. Blalock, 214 Ga. App. 29, 31 (2), 32, supra; see Augusta Tennis Club v. Leger, 186 Ga. App. 440, 443 (367 SE2d 263) (1988).

In the cases sub judice, attorney Ira Smotherman testified that he reviewed the billing statements introduced into evidence by Citadel; that he “looked at just not page-by-page but in bulk the amount of depositions that had been taken concerning this part of the case[; that he reviewed exhibits from] several boxes full of documents that pertain to the issues in this part of the case” and that, based on his observations, the amount of attorney fees claimed by Citadel was “reasonable” for “fees generated in a construction litigation case by lawyers and a law firm that had some experience, background and expertise in handling this kind of case.” However, the billing statements relied on by Smotherman include not only attorney fees purportedly incurred by Citadel in defending the XLR-plate counterclaim, they also include billings for pursuing the third-party claim against All-South. And when cross-examined about these billings, Smotherman admitted that he “didn’t make any attempt to distinguish [between the attorney fees sought by Citadel for defense of the XLR-plate counterclaim and the fees incurred in pursuit of its third-party complaint against All-South].” It thus appears that “[n]o evidence was presented from which the jury could determine what portion of the total amount of [the] attorney time and litigation expenses incurred in this . . . litigation was attributable to the [recoverable fees incurred in defense of the XLR-plate counterclaim and the nonrecoverable fees incurred in connection with Citadel’s third-party claim against All-South].” Arford v. Blalock, 199 Ga. App. 434, 439 (10) (405 SE2d 698). See Augusta Tennis Club v. Leger, 186 Ga. App. 440, 443 (5), supra. Consequently, the jury’s verdict awarding Citadel zero damages for attorney fees was not in error. See Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152, 154 (2) (418 SE2d 616).

Decided July 7, 1995

Smith, Currie & Hancock, Charles W. Surasky, George Q. Sew-ell, for appellant.

Drew, Eckl & Farnham, T. Bart Gary, April Rich, Robert J. Moye III, for appellee.

2. In light of our holding in Division 1 of this opinion, it is unnecessary to address remaining issues in the appeal and the cross-appeal.

Judgment affirmed in Case Nos. A95A0783 and A95A0784.

Andrews and Blackburn, JJ., concur.

       All-South also contends the indemnity agreement is unenforceable because it is violative of public policy as enunciated in OCGA § 13-8-2 (b). We do not reach this issue and assume, without deciding, that the parties’ indemnity agreement is not violative of OCGA § 13-8-2 (b).