author: Beasley, Judge. Carley, Judge,

text:
    A91A0064.
    In the Interest of J. T. M., a child. In the Interest of M. B. J., a child.
    A91A0065.
    (409 SE2d 256)
   Beasley, Judge.

The juvenile court adjudged appellants to be delinquent by reason of their attempted theft of an automobile. The separate appeals, which proceed on identical enumerations of error raising only the general grounds, are consolidated.

In juvenile proceedings, “the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. [OCGA § 15-11-33 (c)]; [Cits.]” M. W. W. v. State of Ga., 136 Ga. App. 472, 474 (221 SE2d 669) (1975).

On review of the sufficiency of the evidence to support an adjudication of guilt, “that view of the evidence most favorable to the State must be taken, for every presumption and every inference is in favor of the verdict [or adjudication].” Swain v. State, 74 Ga. App. 391, 393 (39 SE2d 727) (1946); Thomas v. State, 161 Ga. App. 159, 161 (1) (288 SE2d 112) (1982). Where there is a conflict in the evidence, “the credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury.” Thomas, supra at 162 (1). This applies to juvenile court proceedings on petitions alleging delinquency. See OCGA § 15-11-33 (a).

Positive evidence supports the following sequence of events. On Father’s Day, Sunday, June 17, 1990, which was also M. B. J.’s 15th birthday, he and 16-year-old J. T. M. went to the Chapman home in J. T. M.’s car sometime after 1:30 p.m. The Chapman home is less than a mile from J. T. M’s home. The boys played basketball with the Chapman boy and watched a video. They left before 4:00 p.m.

On the way to J. T. M.’s house, they stopped at the Eiland home around the block from J. T. M.’s home. Ben Eiland’s 1982-280ZX Datsun automobile, which J. T. M. had previously asked to drive, was in the carport. Ben was not at home, and he was missing the main set of keys. On an occasion less than two weeks before, the keys were on the seat of his father’s truck when only he and J. T. M. used the truck. Ben had a spare set so he could drive the car, and he did not tell his mother the keys were missing.

That Sunday afternoon, Mrs. Eiland was upstairs watching television and dozing. Around 4:00 p.m. she was alerted by a noise which sounded to her like a car crash or car door in her own or the neighbor’s driveway. She walked to the window to see if her son was out there, and she heard a knock at the door, directly below the window. She looked down and saw at the door a young man whom she immediately recognized as J. T. M., a former next-door neighbor whom she had seen over a period of the last four years. J. T. M. played basketball with her son. The boy said something aloud to someone. He did not wait for her to respond, and as he walked away from the door she clearly saw his whole body and recognized it as J. T. M.’s. She saw her son’s car rammed up against a tree and went out to see if anyone was in it. The car’s bumper was broken and the hatchback was dented. When she saw the boy at the door, the car was not in the carport. Finding no one around, she went in and tried to phone her husband but got no answer. She went back out, and her son was coming with the neighbor from next door, where he had been watching television until about 4:00 p.m. After telling him that J. T. M. had been there and not to touch the car, she went back in to call the police, who came promptly. Her perception was that J. T. M. was wearing a bright red shirt and black or dark grey shorts, although there was evidence that he was wearing a pink shirt and light pants that afternoon.

The two boys arrived in J. T. M.’s car at his house around the block shortly after 4:00 p.m., went in briefly, and then walked two houses down, played basketball and went inside to look at a yearbook. J. T. M.’s father was washing his car and, to dry it, drove in the neighborhood and around the block past the Eiland house, which was about one-half mile around from J. T. M.’s house. When he returned, he told J. T. M. and M. B. J. that he had seen police cars at the Eiland home. They wanted to go see what happened, so he drove them by slowly. This was about 5:00 p.m. They did not determine the cause of the police presence, and although the two boys were at J. T. M.’s home for several hours before they went out that evening for supper, they did not make any further inquiry.

The police took written statements from the boys the next day, after they had been individually confronted that night in the presence of their parents and denied the charge. According to both statements, which were admitted in evidence, the boys were at Eiland’s around 3:00 p.m. before going to the Chapman’s house. J. T. M’s statement acknowledges that Mrs. Eiland looked out the window when the door-knocking occurred, but he said M. B. J., not he, knocked.

There was no evidence whatsoever that there were two instances that afternoon of a young man knocking on the door while Mrs. Eiland was upstairs and leaving before she answered it, after she looked out. The trier of fact was not required to discredit Mrs. Eiland’s positive identification of J. T. M. because of the discrepancy in the description of the color of his clothing. She recognized him because of his physical characteristics, not because of what he wore. Nor was the court obligated to credit the boys’ statements that they were at Eiland’s around 3:00 p.m., before rather than after going to Chapman’s. There was opportunity before making their statements to the police to collaborate and fabricate. They were hampered in their effort to extricate themselves because they knew Mrs. Eiland had looked out when the door was knocked on.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), there was sufficient evidence to find that J. T. M. and M. B. J. were delinquent by reason of their acts, which if committed by persons 17 years of age or older would constitute their being parties to the crime of attempting to take Ben Eiland’s automobile. OCGA §§ 16-4-1; 16-8-2; 16-2-20.

Judgment affirmed.

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

Carley, Judge,

dissenting.

The majority correctly notes that, in juvenile proceedings, “the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. [Cits.]” M. W. W. v. State of Ga., 136 Ga. App. 472, 474 (221 SE2d 669) (1975). In my opinion, however, the majority errs in holding that this standard was met in the two instant cases. I must, therefore, respectfully dissent.

As against J. T. M., there is no direct evidence that he ever entered or attempted to move the victim’s car. Stripped of its verbiage, the evidence cited by the majority would only authorize a finding that J. T. M. was seen knocking on the door to the victim’s house on the afternoon that an otherwise unidentified perpetrator may have attempted to steal the car. However, J. T. M. was a friend and classmate of the victim, so his presence at the scene was not necessarily suspicious. In fact, he himself freely acknowledged that he had gone to the house to invite the victim to play basketball. Moreover, even if J. T. M. had had no reasonable explanation for his visit to the victim’s house, “‘[presence at the scene of a crime and nothing more will not support a conviction.’ [Cit.]” M. W. W. v. State of Ga., supra at 475.

There is a dispute in the evidence as to the time that J. T. M. was present at the victim’s house. However, there is no dispute that his mere presence at the victim’s house is the only evidence purporting to authorize the finding of his delinquency. The contention that the evidence also showed that J. T. M. had obtained possession of a set of keys to the victim’s car some weeks before the apparent theft is without merit. His purported prior possession of the keys to the victim’s car is based upon nothing more than rank speculation and conjecture and there is no evidence, direct or circumstantial, which would support such a finding. “A bare suspicion of the defendant’s guilt is not sufficient. [Cit.]” Diggs v. State, 90 Ga. App. 853, 857 (1) (84 SE2d 611) (1954). “Circumstances which would authorize a bare conjecture of guilt are not in any case sufficient to warrant a conviction.” Hammond v. State, 15 Ga. App. 471, 473 (83 SE 860) (1914). In the absence of any probative evidence that J. T. M. did anything other than knock on the victim’s door shortly before the automobile was discovered some distance down the driveway, his adjudication of delinquency for attempting to steal the automobile should not be allowed to stand. “Construing the evidence most strongly against the accused, a bare suspicion of his guilt may arise therefrom. Suspicion is not evidence, and a verdict based alone on suspicion is unauthorized by law.” Williams v. State, 13 Ga. App. 685 (79 SE 763) (1913).

Decided July 3, 1991

Reconsideration denied July 25, 1991

John P. Partin, for appellants.

Douglas C. Pullen, District Attorney, Edward F. Berry, Assistant District Attorney, Andrew Prather II, Solicitor, Melvin E. Cooper, Assistant Solicitor, for appellee.

The case against M. B. J. is even weaker than that against J. T. M. The only purported evidence as against him is his own acknowledgment that he had accompanied J. T. M. to the house for the purpose of extending an invitation to the victim to play basketball. Accordingly, even if the evidence had authorized a finding of J. T. M.’s delinquency, the adjudication of M. B. J.’s delinquency would nevertheless have to be reversed. Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97) (1988).

Every presumption and every inference to be drawn from the evidence is in favor of the juvenile court’s adjudication of appellants’ delinquency. However, an appellate court is not authorized to presume from the juvenile court’s adjudications of appellants’ delinquency that sufficient evidence in support thereof must necessarily exist. Construing the evidence most strongly against appellants, they were present at the victim’s house shortly before the victim’s mother discovered that the victim’s car was no longer parked in the carport. In my opinion, such evidence, no matter how suspicious, was not sufficient to authorize a finding of appellants’ delinquency for committing an attempted theft of the victim’s car before they were observed knocking on the door to the victim’s house. Presumably, the juvenile court and a majority of this court is of the opinion that appellants’ “suspicious” presence at the victim’s house would authorize a finding that they were necessarily responsible for any and every otherwise unexplained occurrence at the victim’s house which may have been discovered after their departure from the premises. I cannot subscribe to that analysis and must respectfully dissent.

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


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0134.
    GAMBRELL et al. v. BUXTON et al.
    (409 SE2d 216)
   Cooper, Judge.

This appeal involves a land line dispute which arose out of an attempt to establish a boundary line between two adjoining parcels of property.

Sally Buxton (“Buxton”) owned two adjacent lots of lakefront property in a subdivision. Because of the way the subdivision had been developed, each lot consisted of three adjoining smaller lots running in succession from the street to the lake. The lot closest to the road was designated by a letter; the lot in the middle was designated by a number; and the lot closest to the lake was designated as the access area for the respective numbered lot.

In July 1987, Buxton sold one of her lots, consisting of Lot W, Lot 23, and the access area for Lot 23, to Mr. and Mrs. Gambrell. The deed conveying the property to the Gambrells contained the following clause: “The dividing line between the subject parcels and other property of the grantor located on the northwest side of the subject parcels is a straight line from an iron marker located on the right of way line of a Public Road on the southwestern side of said Parcel W, which marker is 72 feet northwesterly from the marker at the southern corner of said Parcel W, and thence in a northeasterly direction to a marker located immediately next to a brick wall on the waterfront, which point is 95 feet northwesterly from the marker at the easternmost corner of the above described parcels.”

In February 1988, Buxton conveyed her remaining lot to Sara Helms (“Helms”). The deed conveying the property to Helms did not contain the boundary line description recitation regarding the dividing line between the two parcels of property, which was contained in the Gambrells’ deed. However, in July 1989, Buxton executed a deed of correction to Helms to include the same boundary line description contained in the Gambrells’ deed and attached pictures of the iron markers as exhibits to the deed of correction. Appellants, the Gambrells, and other adjoining property owners, filed an action against appellees, Buxton and Helms, seeking to have the boundary line declared void. Buxton filed a motion for judgment on the pleadings and motion to dismiss, and after hearing argument, the trial court entered a judgment for both defendants, finding that the boundary line between the Gambrells’ property and the Helms’ property was a straight line between the two iron markers referred to in the deed from Buxton to the Gambrells.

Appellants contend that the boundary line description was too vague and indefinite to be enforceable as a boundary line because it did not accurately locate the iron markers at the time of the conveyance to the Gambrells. A boundary line may be designated by running a straight line between two established iron stakes. See Barron v. Chamblee, 199 Ga. 591, 599 (34 SE2d 828) (1945). “ ‘What is most material and most certain in a description shall prevail over that which is less material and less certain. . . . “[Wjhenever in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern, although neither courses nor distances nor the computed contents correspond with such boundaries.” ’ [Cit.]” White v. Spahr, 207 Ga. 10, 19 (59 SE2d 916) (1950). The boundary line description in the Gambrells’ deed and in the deed of correction from Buxton to Helms describes the location of two iron markers, and those iron markers are pictured in exhibits to the deed of correction. In his deposition, Mr. Gambrell identified pictures of the two iron markers and testified that they were in place when he purchased the lot; that he understood that those markers designated the corners of his property; and that he removed the marker closest to the waterfront because he did not believe it to be in the location as described in the deed. We conclude that the boundary line, which was described as running between the two iron markers was a sufficient description and controlled the location of the boundary line between the two lots. See Seignious v. MARTA, 252 Ga. 69 (1) (311 SE2d 808) (1984); see also White v. Spahr, supra.

We also find appellants’ contention, that a question of fact exists as to Buxton’s intent in establishing the boundary line, to be without merit. Appellants argue that because the effect of Buxton’s failure to include the boundary line description in the first deed to Helms retained ownership in Buxton of a small triangle of land, a question of fact is raised as to Buxton’s intent with regard to the triangular portion of land, at the time of her earlier conveyance to the Gambrells. We disagree with appellants. The failure to include the boundary description in the first deed to Helms did not create a question of fact inasmuch as Buxton corrected this apparent oversight in a subsequent deed of correction. Nor does the fact that the iron markers may not have been located at the exact spot described in the deed to the Gambrells raise a question of fact. Both parties appear to agree that the intent of the grantor in including the above-quoted language in the Gambrells’ deed was to create a straight line boundary between the two parcels of property, which did not presently exist because of the division of the larger lots into three separate lots. The iron makers establishing the corners of the boundary line were in place and visible at the time of the deed, even if they were not located exactly according to the description. The trial court correctly ruled that appellants could have their deed corrected to show the exact location of the iron markers. Nor do we find that the affidavit of a registered surveyor, submitted by appellants on the day of the hearing, created a question of fact. That affidavit, executed after the Gambrells had removed the iron marker originally placed to mark the waterfront corner, set forth that the boundary line description is ambiguous; that the iron marker closest to the street was not in the exact location as described in the Gambrells’ deed and therefore could not be found with certainty; that no marker was found establishing the corner on the waterfront and therefore, its actual location was ambiguous. As previously noted, even if the exact location of the iron markers cannot be ascertained from the description in the deed, their location was ascertained prior to the sale of the lot, and appellants may still seek correction of their deed to reflect the actual location of the markers. Accordingly, we find no error with the trial court’s entry of judgment in favor of appellees.

Decided May 6, 1991

Reconsideration denied July 25, 1991

Donald W. Huskins, for appellants.

Reynolds & McArthur, Charles M. Cork III, George D. Lawrence, for appellees.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0353.
    FOUNTAIN et al. v. ATLANTA CASUALTY COMPANY.
    (409 SE2d 239)
   Cooper, Judge.

Appellee issued an insurance policy to appellants, Stanley and Marsha Fountain, containing a named driver exclusion agreement, which provided that all coverages except personal injury protection (“PIP”) were not afforded by the policy if any vehicle was being used, driven, operated, manipulated by or under the care, custody, or control of Cynthia R. Fountain, the 16-year-old daughter of Stanley and Marsha Fountain. The appellants also rejected in writing all uninsured motorist coverage if the vehicle were operated by the excluded driver in the policy. While the policy was in effect, Cynthia Fountain was involved in a collision with an uninsured motorist while she was operating a Suzuki 185, three wheel “all-terrain vehicle” owned by a neighbor. The appellants filed a PIP claim which was denied by appellee because the vehicle on which Cynthia Fountain was injured did not meet the definition of a motor vehicle under the insurance policy’s PIP provision. A few months later, appellants made demand for uninsured motorist benefits under the policy, and over three months later appellee filed a declaratory judgment action seeking a determination whether uninsured motorist benefits were available to Cynthia Fountain. Appellants’ amended answer to the petition contained a counterclaim for damages for abusive litigation, legal expenses, and attorney fees. Appellants filed a motion to dismiss or in the alternative motion for summary judgment, and the appellee followed with a cross-motion for summary judgment. This appeal follows the trial court’s order denying appellants’ motion to dismiss and granting summary judgment to appellee.

1. Appellants enumerate as error the trial court’s denial of their motion to dismiss, contending that appellee’s petition for declaratory relief failed to show that appellee was in a position of uncertainty and insecurity because appellee had absolutely denied appellants’ uninsured motorist claim prior to the filing of the petition. Although the facts of this case clearly show that appellee had not expressly denied appellants’ uninsured motorist claim, we nevertheless conclude that appellee’s petition for declaratory relief failed to state a claim upon which relief could be granted.

“In the seminal case of Athens v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567), the Supreme Court held: ‘While our declaratory-judgment statute should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest.’ [Cit.] As in Chastain v. U. S. Fid. &c. Co., 190 Ga. App. 215, 217 (1) (378 SE2d 397), ‘there is no question that a dispute exists between (the insurance company) and [appellants] with regard to the parties’ rights and duties under an automobile . . . insurance policy. However, all possible rights under the policy have accrued and all obligations have attached. Further, the record discloses that there is no pending action which could possibly expose (the insurance company) to uncertainty with regard to its duty to defend. ... It is therefore apparent that (the insurance company) was merely seeking an advisory opinion from the trial court should past events result in an action at law or in equity. Georgia’s Declaratory Judgments Act makes no provision for such an opinion.’ ” Sentry Ins. v. Majeed, 194 Ga. App. 276 (2) (390 SE2d 269) (1990), aff’d 260 Ga. 203 (391 SE2d 649) (1990).

In the case sub judice, appellee’s petition for declaratory relief failed to disclose why appellee was in need of direction from the court with respect to future conduct on its part which might increase its liability or otherwise affect its interest. Furthermore, although appellee did not absolutely deny appellants’ claim for uninsured motorist benefits, it appears from our review of the record that appellee had taken a sufficiently firm position that Cynthia Fountain had rejected uninsured motorist coverage under the policy so that all rights between appellee and appellants had already accrued prior to the filing of the declaratory action. In our view, appellee was not “ ‘ “walking in the dark” but had affirmatively acted.’ [Cit.]” Sentry Ins. v. Majeed, supra at 278. Therefore, the trial court should not have granted summary judgment in favor of appellee but should have granted appellants’ motion to dismiss the petition for declaratory relief.

Decided June 28, 1991

Reconsideration denied July 25, 1991

Thomas J. Cullen, for appellants.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Gary L. Seacrest, Jean F. Johnson, Dan J. Colley, for appellee.

2. In view of our holding in Division 1 of this opinion, appellants’ remaining enumerations of error are rendered moot.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0451.
    MINOR v. E. F. HUTTON & COMPANY, INC.
    (409 SE2d 262)
   Cooper, Judge.

On October 19, 1987, sometimes referred to as “Black Monday,” appellant, a physician and an experienced stock market trader, suffered a series of losses in the commodities market which resulted in a deficit in his account with appellee. After appellant refused to pay the account balance, appellee filed suit against appellant seeking to recover the account deficit of $13,334. Appellant counterclaimed for losses in the stock market allegedly incurred as a result of appellee’s misrepresentations and breach of fiduciary duty. Appellee moved for summary judgment on the complaint and counterclaim; however, a ruling on the motion was deferred until the case went to non-binding arbitration in accordance with Local Rule 1000. The arbitration panel ruled in favor of appellee and awarded appellee the sum of $12,323.18. Appellant appealed the award to the trial court, and appellee’s pending motion for summary judgment was argued. The trial court granted summary judgment to appellee on the complaint and counterclaim, ruling that appellant’s failure to object in writing to his account statements within five days after their receipt, as required by the terms of the client account agreement entered into between appellant and appellee, resulted in appellant being bound by the summaries contained in the statements. The trial court entered judgment against appellant in the amount of $12,323.18 and dismissed appellant’s counterclaim.

1. Relying on Smithloff v. Benson, 173 Ga. App. 870 (328 SE2d 759) (1985), appellant argues that the trial court erred in granting summary judgment to appellee because appellee, by its actions and words, led appellant to believe that a written objection to the account statements would not be required. However, this argument appears not to have been raised in the trial court and may not be considered for the first time on appeal. Noro-North Plaza &c. v. Rare Coins of Ga., 196 Ga. App. 443 (1) (395 SE2d 918) (1990).

2. Appellant also contends that the affidavit of Henry Herschaft, submitted by appellee in support of its motion for summary judgment, was insufficient as a matter of law to support a judgment in the amount of $12,323.18. We disagree. “Appellee presented the sworn statement of its [Divisional Futures Director, Henry Herschaft], setting forth the amount it claimed was due which, together with attached statements of account that were admissible as business records pursuant to OCGA § 24-3-14, pierced the general denial in appellant’s answer. [Cit.]” International Business Consulting v. First Union Nat. Bank of Ga., 192 Ga. App. 742, 743 (386 SE2d 400) (1989). Moreover, OCGA § 9-11-56 (c) provides that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” “ ‘ “(T)he court is obliged to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in Rule 56 (e).” (Cit.)’ [Cit.]” Nelson v. Smothers, 164 Ga. App. 112, 113 (296 SE2d 414) (1982). In the present case, we have examined the record before us, particularly the account summaries, the affidavit of Henry Herschaft and his testimony at the arbitration proceedings, and conclude that sufficient evidence existed to support a judgment against appellant in the amount of $12,323.18.

3. Appellant argues that the trial court erred in granting summary judgment to appellee on appellant’s counterclaim, which sought damages for appellant’s losses in the stock market allegedly incurred because of appellee’s failure to disclose that the stock market was in a “state of panic” and because appellee had induced appellant to make trades that he would not have otherwise made if he had known that appellee had ordered its brokers to liquidate all margin accounts.

Decided July 8, 1991

Reconsideration denied July 25, 1991.

Swertfeger & Scott, Stanley E. Kreimer, Jr., for appellant.

Parker, Hudson, Rainer & Dobbs, Jamie M. Brownlee-Jordan, G. Wayne Hillis, Jr., for appellee.

A stock broker’s duty to account to its customer is fiduciary in nature, so that the broker is obligated to exercise the utmost good faith. E. F. Hutton & Co. v. Weeks, 166 Ga. App. 443 (1) (304 SE2d 420) (1983). “ ‘Requirements of good faith demand that in the principal’s interest it is the agent’s duty to make known to the principal all material facts which concern the transactions and subject matter of his agency.’ [Cit.]” Spratlin, Harrington & Thomas v. Hawn, 116 Ga. App. 175 (2) (156 SE2d 402) (1967). Viewing the evidence in favor of appellant, the non-movant, we fail to find any evidence which would support appellant’s claim that appellee failed to exercise good faith in the handling of appellant’s account or failed to make known to appellant any material fact during the time period at issue. To the contrary, the record indicates that appellant was personally aware of the state of the stock market on October 19, 1987, having been in appellee’s office part of the day, and carefully followed the market for the remainder of the day. Furthermore, the record fails to reveal any evidence which would support appellant’s claim that appellee induced appellant to liquidate his margin account or made any unauthorized trades in his account. “ ‘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 as to any material fact. (Cit.)’ [Cit.]” Centennial Ins. Co. v. Sandner, Inc., 193 Ga. App. 253 (1) (c) (387 SE2d 443) (1989). Accordingly, the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0491, A91A0492.
    UNIQUE DESIGNS, INC. v. PITTARD MACHINERY COMPANY; and vice versa.
    (409 SE2d 241)
   Cooper, Judge.

In January or February of 1988, Pittard Machinery Company (“Pittard”), a distributor of lathes, attempted to sell to Unique Designs, Inc. (“Unique”) a “Mori Seiki” lathe; however, Unique instead purchased a less expensive “Mazak” lathe from one of Pittard’s competitors. In June of 1988, Unique contacted Pittard and requested Pittard’s assistance in disposing of the Mazak lathe because it had turned out to be incompatible with Unique’s business. During the course of this conversation, Unique indicated that in return for Pittard’s assistance in disposing of the Mazak lathe, Unique would replace the Mazak lathe by purchasing a Mori Seiki lathe from Pittard. Pittard proceeded to arrange for the resale of the Mazak lathe by putting Unique in contact with an international broker of machinery who quickly found a purchaser for the used lathe. Pittard never asked Unique to pay a commission on the sale of the Mazak lathe because of its expectation that Unique would be replacing the Mazak lathe with a Mori Seiki lathe purchased from Pittard. Thereafter, Unique and Pittard commenced negotiating the price of the Mori Seiki lathe and during the course of a telephone conversation, the parties finally agreed upon a price of either $104,000 or $104,850, and arrangements were made for the delivery of a lathe to Unique. It is undisputed that an oral agreement to purchase the lathe was made, although the amount of the purchase price is in dispute.

The day after the agreement was reached, Unique contacted Pittard and cancelled its order to purchase the lathe. Apparently, Unique had been negotiating all along with one of Pittard’s competitors and had used its contract with Pittard as leverage to secure a reduced price on a different model lathe with the competitor. Shortly after Unique’s repudiation of the contract, Pittard was able to resell the Mori Seiki lathe to one of its regular customers, Sieco, Inc. (“Sieco”), for $110,000.

Pittard brought suit against Unique seeking general damages and attorney fees for Unique’s breach of its agreement to purchase the lathe. The trial court granted Pittard’s motion for summary judgment on the issue of liability, ruling that the oral contract between the parties was valid pursuant to OCGA § 11-2-201 (3) (b), and Pittard was a “high volume dealer,” entitled to recover its lost profits pursuant to OCGA § 11-2-708 (2), without having to offset the proceeds it received from the sale of the lathe to Sieco. The case proceeded to trial on the issue of damages, and the jury awarded Pittard $18,000 in general damages and $18,000 in attorney fees. Following the jury verdict, the trial court entered judgment in favor of Pittard for $18,000 in general damages but set aside the jury’s award of attorney fees. Unique appeals from the trial court’s grant of partial summary judgment to Pittard and the final judgment entered on the jury verdict for general damages (Case No. A91A0491). Pittard cross-appeals from the trial court’s order setting aside the jury’s award of attorney fees (Case No. A91A0492).

Case No. A91A0491

1. Unique contends in enumerations 1, 2, 3, 4, 9, 10 and 11 that the trial court erred in adopting the “lost volume dealer” rule, which allowed Pittard to recover its lost profits on the repudiated contract without offset for the proceeds received from the resale of the lathe to Sieco.

Both Pittard and Unique appear to be in agreement that OCGA § 11-2-708 (2) sets forth the proper measure of damages in circumstances such as those presented by this appeal. Although there are no Georgia cases directly on point, this court has held that “[i]f the measure of damages under [OCGA § 11-2-708 (1)] is inadequate to put the seller in as good a position as if the contract had been fully performed, then the damages are as prescribed by (2). [Cits.]” Franklin v. Demico, Inc., 179 Ga. App. 775 (1) (347 SE2d 718) (1986). Numerous authoritative writers and other jurisdictions agree that UCC § 2-708 (2) (OCGA § 11-2-708 (2)) is applicable under the present circumstances. See White & Summers, Uniform Commercial Code, § 7-9 (1988) (fn. 4). It is also the opinion of these authorities that the statutory history of the Uniform Commercial Code indicates that UCC § 2-708 (2) was intended to provide an adequate remedy for the “lost volume dealer.” “Lost volume dealer,” sometimes referred to as a “lost volume seller,” refers to a seller who due to the nature of its business, is damaged by a buyer’s breach to the extent that it loses the entire profit from the sale.

“When the seller is a dealer he is entitled to recover lost profits and incidental damages from a repudiating buyer, even though the seller has resold the goods to another buyer at the same price as the original buyer had contracted to pay, for the reason that if the original buyer had not repudiated, the seller would have been able to make two sales and thus obtain two profits.

“The rationale for the rule for measuring damages in the case of a seller who is a middleman is that the breach by his buyer does not make possible a new sale which the seller could not have otherwise made in which new sale the profit lost upon the sale to the original buyer will be replaced; but rather, results in an irretrievable loss of profits.” 4 Anderson, UCC, § 2-708:21 (1983).

In order for a seller to establish that he is a “lost volume dealer,” he must prove that even though he later resold the repudiated contract goods, the sale to the third party would have been made regardless of the buyer’s breach so that the seller would have realized two profits from two sales. “The key inquiry is the sellers’ ability to provide the product to both the breaching buyer and the resale buyer.” Ragen Corp. v. Kearney & Trecker Corp., 912 F2d 619, 627 (3rd Cir. 1990). See also National Controls v. Commodore Business Machines, 209 Cal.Rptr. 636, 643 (1985); Teradyne, Inc. v. Teledyne Indus., 676 F2d 865 (1st Cir. 1982); Snyder v. Herbert Greenbaum & Assoc., 380 A2d 618, 624 (1977).

In the case sub judice, the record reveals that Pittard carries a large inventory of lathes; that the lathe to be delivered to Unique was a stock inventory item not specially ordered, made or adapted to any specifications on Unique’s part; and that the sale of the Mori Seiki lathe to Sieco would have occurred even if Unique had not repudiated its contract. Thus, Pittard has clearly established itself as a “lost volume dealer,” entitled to recover its lost profits pursuant to OCGA § 11-2-708 (2).

OCGA § 11-2-708 (2) provides: “If the measure of damages provided in subsection (1) of this Code section is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this article (Code section 11-2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.” Unique argues that the formula provided for in this code provision should be strictly applied so that Pittard should be required to give Unique due credit for the payments or proceeds from the resale of the lathe to Sieco. However, the overwhelming view of modern authority has concluded that the formula, if strictly applied, will not yield the correct recovery that a “lost volume dealer” deserves. See White & Summers, supra, § 7-13 (fn. 3). As the court in Snyder v. Herbert Greenbaum & Assoc., supra, stated at p. 625: “Logically, lost volume status, which entitles the seller to the § 2-708 (2) formula rather than the formula found in § 2-708 (1), is inconsistent with a credit for the proceeds of resale. The whole concept of lost volume status is that the sale of the goods to the resale purchaser could have been made with other goods had there been no breach. In essence, the original sale and the second sale are independent events, becoming related only after breach, as the original sale goods are applied to the second sale. To require a credit for the proceeds of resale is to deny the essential element that entitles the lost volume seller to § 2-708 (2) in the first place — the mutual independence of the contract and the resale.

“Practically, if the ‘due credit’ clause is applied to the lost volume seller, his measure of damages is no different from his recovery under § 2-708 (1). Under § 2-708 (1) he recovers the contract/market differential and the profit he makes on resale. If the ‘due credit’ provision is applied, the seller recovers only the profit he makes on resale plus the difference between the resale price and the contract price, an almost identical measure to § 2-708 (1). If the ‘due credit’ clause is applied to the lost volume seller, the damage measure of ‘lost profits’ is rendered nugatory, and he is not put in as good a position as if there had been performance.”

“ ‘ “(T)he cardinal rule to guide the construction of laws is, first, to ascertain the . . . intent and purpose in enacting (them), and then to give (them) that construction which will effectuate the intent and purpose.” [Cits.]’ [Cit.]” American Med. Intl. v. Charter Lake Hosp., 186 Ga. App. 204 (2) (366 SE2d 795) (1988). OCGA § 11-1-106 (1) provides that “[t]he remedies provided by [the Uniform Commercial Code] shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed. ...” The adoption of the “lost volume dealer” rule is consistent with the intent and purpose of the Uniform Commercial Code — to fairly compensate “lost profit dealers” so that they will be put in as good a position as if the other party had fully performed. Since Pittard clearly established that it was a “lost volume dealer,” the trial court was correct to allow Pittard to recover its lost profits on its contract with Unique without having to offset profits it received on the resale to Sieco. Accordingly, appellant’s enumerations 1, 2, 3, 4, 9, 10 and 11 are without merit.

2. (a) In enumeration 7, Unique contends that the trial court erred in allowing Pittard’s claim for attorney fees to go to the jury. “Questions of bad faith, stubborn litigiousness and expense, OCGA § 13-6-11, are generally questions for the jury. [Cit.]” Gorin v. FPA 2, P.C., 184 Ga. App. 239, 241 (361 SE2d 193) (1987). “ ‘(T)he elements of bad faith which will authorize expenses of litigation in an ex contractu action are those acts relative to the conduct of entering into a contract or to the transaction and dealings out of which the cause of action arose, [cits.], but do not have reference to the motive with which the defendant defends an action after a cause of action has occurred. (Cit.) . . . We construe “transactions and dealings out of which the cause of action arose” to mean not only the negotiation and formulation of the contract, but also included is the performance of the contractual provisions.’ [Cit.]” St. Holmes v. St. Holmes, 169 Ga. App. 283 (2) (312 SE2d 370) (1983). In the case sub judice, there was evidence from which a jury could have concluded that Unique procured Pittard’s assistance in selling the Mazak lathe without ever intending to fulfill its promise to replace it with a lathe purchased from Pittard. Additionally, the jury could have concluded that Unique entered into the agreement with Pittard to acquire the lathe solely to use the agreement as leverage to lower the price being quoted by one of Pittard’s competitors. Accordingly, the trial court did not err in allowing Pittard’s claim for attorney fees to go to the jury. See Beall v. F. H. H. Constr., 193 Ga. App. 544 (5) (388 SE2d 342) (1989).

(b) In enumeration 8, Unique argues that the trial court’s charges to the jury on bad faith and allowance of attorney fees were incorrect and that the trial court’s decision to recharge the jury on bad faith three times without a proper definition of bad faith was prejudicial error. The transcript reveals that after the jury had begun its deliberations, the jury twice requested that the trial court recharge the jury on bad faith and allowance of attorney fees. The trial court complied with the jury’s request, recharging the jury with the same charges on bad faith and attorney fees previously given, along with a reminder that the jury should not take the recharges out of context or give them undue weight. After both counsel objected to the content of the trial court’s recharge on the grounds that the charges failed to provide the jury with an adequate definition of bad faith, the trial court offered both counsel an opportunity to provide new jury charges. The next morning, after reviewing both counsel’s proposed charges on bad faith, the trial court decided to let the jury determine on its own what constitutes “bad faith.” Neither attorney nor the court were aware of OCGA § 11-2-103 (1) (b) which defines good faith in the case of merchants as “honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade,” which by implication, would have provided a definition of bad faith.

A request to charge should in itself be correct and even perfect, otherwise the refusal to give it will not be cause for a new trial. See Annis v. Tomberlin &c. Assoc., 195 Ga. App. 27 (7) (392 SE2d 717) (1990). Since Unique has conceded that the request to charge it submitted at trial was not correct, the refusal of the trial court to so charge was not reversible error. Moreover, we find that the charges given by the trial court were correct statements of the law and provided the jury with a sufficient basis to decide whether Unique’s actions in this transaction were in bad faith. “ ‘Instructions which, when the jury is given credit for ordinary intelligence, are not confusing and prejudicial, are not reversible error.’ [Cit.]” Smaha v. Moore, 193 Ga. App. 23, 24 (387 SE2d 13) (1989).

We also reject Unique’s argument that the multiple recharges to the jury on the issue of bad faith constituted prejudicial error. Where the trial court cautions a jury before recharging upon a particular phase of a case that the recharge should not be considered with any emphasis, it is not error for the court to recharge the jury only upon the point or points requested. Brown v. Nixon, 231 Ga. 619 (2) (203 SE2d 200) (1974).

3. In enumerations 5, 6, 10, and 11, Unique argues that although the trial court in his grant of partial summary judgment to Pittard ruled that an oral contract to purchase the lathe existed, Unique was still entitled to present evidence to show that the oral contract was unenforceable because there had been no meeting of the minds. Relying on OCGA §§ 13-3-1 and 13-3-2, Unique argues that because certain essential terms of the agreement were in dispute — the purchase price of the lathe, the accessory packages to be included in the sale, the amount of the downpayment and the financing arrangements — the contract was rendered unenforceable. We disagree. “Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” OCGA § 11-2-204. The record clearly indicates that Unique intended to purchase a “Mori Seiki” lathe from Pittard for either $104,000 or $104,850. The confusion over the purchase price and the open terms in the agreement were not sufficient to negate the clear intent of the parties to enter into an enforceable agreement.

Unique also attempted to admit into evidence testimony and documentary evidence pertaining to a transaction between Unique and Pittard that occurred two years earlier, also involving Unique’s purchase of a lathe from Pittard. Unique contends that the document evidencing the prior transaction, which consisted of ten pages containing a description of the accessory package to be included in the sale, as well as downpayment and financing terms, should have been admissible as evidence of a course of dealing between the parties in accordance with the provisions of OCGA § 11-1-205 (1). It is Unique’s argument that this course of dealing between the parties would have established that there had been no meeting of the minds in the present transaction because certain key terms that had been described in great detail in the prior transaction had not been discussed or agreed upon in the present transaction.

“A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” OCGA § 11-1-205 (1). (Emphasis supplied.) “ ‘It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning. [Cits.]’ ” Sledge v. Employees’ Retirement System, 196 Ga. App. 597, 598 (396 SE2d 550) (1990). We can only conclude under the plain and unambiguous language of this statute that a sale of a single lathe from Pittard to Unique, which occurred more than two years prior to the transaction at issue in this action, cannot be deemed to be a “sequence of previous conduct” under OCGA § 11-1-205 (1). Thus, the trial court did not err in refusing to allow evidence of the previous transaction at trial.

4. In enumeration 12, Unique contends that the trial court erred in refusing to allow Unique the right to cross-examine Pittard’s witnesses as to the amount of commission which would have been paid by Pittard to its salesman from the sale of the lathe to Unique and in refusing to charge the jury that the commission was a direct cost of the sale that should have been deducted from the jury’s award. The correct measure of damages under OCGA § 11-2-708 (2), “is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer. ...” This court has held that profit is determined by “subtracting from the contract price the amount which full performance would have cost the [seller].” Franklin v. Demico, Inc., supra at 778. Other jurisdictions have interpreted this provision to require that “one need only subtract direct costs from the contract price.” Automated Med. Labs. v. Armour Pharmaceutical Co., 629 F2d 1118, 1125 (5th Cir. 1980). Unique argues that the definition of “direct costs” would of necessity have included the sales commission that would have been paid by Pittard to its salesperson, such that this amount should have been deducted from the profits awarded to Pittard. We disagree. As previously stated in Division 1 of this opinion, OCGA § 11-1-106 (1) states: “The remedies provided by [the Uniform Commercial Code] shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed. . . .” See, e.g., Bennett v. Assoc. Food Stores, 118 Ga. App. 711 (2) (165 SE2d 581) (1968). If Unique had fully performed under the contract, Pittard would have received $18,000 profit from the sale and would have had funds available to pay its salesperson the compensation owed him as a result of this sale. Requiring Pittard’s award to be reduced by an amount equal to the commission that Pittard may have intended to pay its salesperson subsequent to this sale or by the amount of any other liability which Pittard may have been obligated to satisfy from the profits received from this sale, i.e. income taxes, would not place Pittard in the position it would have been in had this contract been performed. Accordingly, this enumeration of error is without merit.

Decided June 28, 1991

Reconsiderations denied July 23, 1991 and July 25, 1991

Paul C. Myers, for appellant.

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, William C. Collins, Jr., for appellee.

Case No. A91A0492

5. In view of our ruling in Division 2 of this opinion, we reverse the order of the trial court setting aside the jury’s award of attorney fees. See Powell v. Watson, 190 Ga. App. 375 (378 SE2d 867) (1989).

Judgment affirmed in Case No. A91A0491. Judgment reversed in Case No. A91A0492.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0530.
    O’DELL v. THE STATE.
    (409 SE2d 54)
   Cooper, Judge.

The appellant was convicted by a jury of driving under the influence, in violation of OCGA § 40-6-391 (a) (1), and driving with a blood-alcohol concentration in excess of .12 grams, in violation of OCGA § 40-6-391 (a) (4). He was acquitted of improper lane change. Appellant appeals both convictions and the denial of his motion for new trial.

1. Appellant first enumerates the general grounds but has declined to cite any authority or offer any specific argument in support of this enumeration. Thus, this enumeration is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Moss v. State, 196 Ga. App. 81 (5) (395 SE2d 363) (1990).

2. The appellant enumerates as error the trial court’s failure to suppress the result of the intoximeter test on the ground that appellant was prevented from securing an independent chemical test from a qualified person of his own choosing. We note that we have examined the record filed by appellant in this appeal, and have taken judicial notice of the transcript filed in Case No. A90I0141 on file in this Court. See Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367) (1990).

The evidence adduced at the suppression hearing shows that appellant was stopped by a Georgia Tech police officer for driving back and forth across the centerline of Techwood Drive and was arrested for driving under the influence after he was unable to pass three field sobriety tests. Appellant submitted to an intoximeter breath test and upon discovering that he had produced a reading of .19 grams percent, requested that he be afforded an opportunity to have an independent chemical analysis of his blood. Because appellant was unfamiliar with the downtown area, he asked the police officer to take him to the closest hospital which could administer a blood test. Appellant was taken to Crawford Long Hospital where he was told by a nurse that the results of a blood test done at the hospital would probably not be admissible in court. The police officer mistakenly agreed with the nurse’s conclusion and told appellant that none of the other hospitals in the downtown area could administer a blood test that would be admissible in court. Nonetheless, appellant repeatedly requested that he be given an opportunity to call other hospitals to find a place which could administer a legally admissible blood test. The officer refused to allow appellant to use the telephone in the hospital because the officer believed that appellant had waived his right to an independent blood test by refusing to take the blood test at Crawford Long Hospital and because of appellant’s increasingly argumentative and uncooperative attitude. Appellant was transported to jail without having received a blood test.

“OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. [Cit.] While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. [Cit.] The statute also states that ‘justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’ It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s request; (3) availability of police time and other sources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.” State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989).

Viewing the facts of this case in light of the analytical framework set forth above, we find that the trial court erred in holding that appellant was given a reasonable opportunity to have an independent test performed by a person of appellant’s own choosing. Although appellant asked the police officer to take him to the closest hospital where he could have a blood test administered, it is clear that appellant expected to be taken to the closest hospital that could administer a legally admissible blood test. Once appellant and the officer were told that the results of a blood test performed by Crawford Long Hospital may not be admissible in court, it would not have been unreasonable to allow appellant an opportunity to find another hospital where he could be administered an admissible test. The evidence indicated that appellant had a sufficient sum of money on his person to pay for a test; that there were no emergencies so that the police officer had the time to take appellant to another hospital; that there were four other hospitals in the general vicinity which could administer a blood test; and that the appellant clearly indicated that he wanted to make alternative arrangements to have an independent test. Looking to the totality of the circumstances, we conclude that appellee’s request for an alternative test was reasonable, and the officer’s refusal was not. See Love v. State, 195 Ga. App. 392 (2) (393 SE2d 520) (1990); State v. Buffington, supra at 802. Moreover, it makes no difference whether the officer made an innocent mistake in assuming that no other hospitals in the area could administer a legally admissible test because the end result was that appellant was unable to have an independent blood test. This, in effect, amounted to an unjustifiable refusal to permit appellant an opportunity for an independent test by a person of his own choosing. See Gordon v. State, 190 Ga. App. 55 (378 SE2d 362) (1989); State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987). Accordingly, the results of the intoximeter test should have been suppressed.

Decided June 24, 1991

Reconsideration denied July 25, 1991

James C. Strayhorn, for appellant.

James L. Webb, Solicitor, Fay I. McCormack, R. Lee O’Brien, Jr., Helen A. Roan, Assistant Solicitors, for appellee.

3. Lastly, it should be noted that the trial court erred in entering convictions and sentencing appellant on both DUI charges since they were predicated on the same conduct. Love v. State, supra at 392. Accord Sanders v. State, 176 Ga. App. 869 (4) (338 SE2d 5) (1985).

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.


author: Andrews, Judge.

text:
    A91A0546, A91A0725.
    PATTERSON v. BUTLER et al.
    (409 SE2d 531)
   Andrews, Judge.

Patterson, proceeding pro se, appeals the trial court’s grant of a directed verdict and award of attorney fees and expenses on his multi-count complaint against Clayton County, seven members of the county police force, the county commission chairman and the county director of licensing.

“In considering a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.” Brown v. Commercial Credit &c. Corp., 172 Ga. App. 568, 572 (2) (323 SE2d 822) (1984). Viewing the evidence in the light most favorable to Patterson, the evidence at trial established that Patterson operated, managed and was the corporate president of “Mr. P’s,” a Clayton County restaurant, lounge and entertainment center which served alcohol and maintained pool tables and coin operated game machines.

In August 1986, after receiving several complaints about Mr. P’s and its drunken patrons’ behavior, the Clayton County Police Department launched an investigation of the establishment. The ensuing 16-day undercover investigation revealed various criminal activity at Mr. P’s, including gambling and evidence of drug transactions. In addition to two undercover detectives inside Mr. P’s, policemen inside a van conducted covert surveillance of Mr. P’s parking lot on two occasions.

During this same period, Patterson claimed that rumors were spreading that the police planned to shut down Mr. P’s. Evidence at trial indicated that one defendant, a police officer who was not involved in the investigation, stated that he wanted to see the business closed. Patterson also claimed that he received hints that he could pay the police department to stop the investigation.

As a result of the undercover investigation, on the evening of September 5, 1986, and into the early morning of September 6, the police raided Mr. P’s. The “raid,” which lasted about 45 minutes, consisted of three uniformed police officers entering Mr. P’s, taking photographs of the establishment and the customers, and issuing Patterson a citation for violation of a county ordinance. In conjunction with the police activity inside, outside a police helicopter hovered around Mr. P’s for about ten minutes shining a bright light into the parking lot. The police did not arrest anyone during the raid and no evidence was seized.

At trial, Patterson introduced little evidence of any further police activity at Mr. P’s after September 6. Three witnesses who worked at Mr. P’s claimed that after the raid, police helicopters circled the Mr. P’s parking lot on three or four occasions.

During the fall of 1986, the county officials suffered confusion over the relationship between the state billiard statute (OCGA § 43-8-1) and the county ordinances governing the management of coin-operated amusement machines. In December 1986, after referring the matter to the Solicitor and determining that the state statute preempted the ordinance, the county officials cited Patterson with four violations of the billiard statute which they had observed in August 1986.

Patterson filed this lawsuit in January 1987 and then applied for some of the county licenses required to run his business. He was denied the 1987 licenses, yet he continued to operate the business.

On February 18, 1987, Patterson was tried in state court on the five charges against him. Patterson’s motion for directed verdict was granted on one of the billiard charges on the first day of trial. Before the second day of trial began, Patterson pled guilty to the ordinance charge and the prosecution dropped the remaining three billiard charges.

According to Patterson, the result of the police and county actions outlined above was to reduce Mr. P’s business, causing more than $2 million in lost profits and $4.5 million in emotional distress. Patterson filed a multi-count complaint, seeking nominal, compensatory and punitive damages claiming that the defendants had formed a conspiracy to try and force him out of business. Patterson originally named as defendants 18 individual county officials, but by the time of trial the number of individual defendants had been reduced to nine. At the close of Patterson’s evidence, the trial court directed a verdict against him.

1. In his first enumeration of error, Patterson claims that the trial court erred by refusing to grant his motion for summary judgment. Patterson argues that since the defendants did not file a pleading entitled “Statement of Disputed Facts” with their responsive brief, his motion should have been granted. The trial court’s denial of summary judgment was proper, since the record amply demonstrated the existence of facts in dispute. See generally Fletcher v. Ford, 189 Ga. App. 665 (2) (377 SE2d 206) (1988); Hill v. Loren, 187 Ga. App. 71 (3) (369 SE2d 260) (1988).

2. In his second enumeration of error, Patterson claims that the trial court “erred by ignoring conflicts in the evidence, resolving conflicts in the evidence, construing evidence most favorably to movants, and drawing inferences in favor of movants.” In determining the validity of this enumeration, we must examine separately each count of Patterson’s complaint.

(a) The grant of the directed verdict on Patterson’s claim for malicious prosecution was proper since one of the essential elements of this cause of action was missing. In order to maintain an action for malicious prosecution, a plaintiff must show the termination of the criminal prosecution in his favor. See generally OCGA § 51-7-40; Medoc Corp. v. Keel, 166 Ga. App. 615 (305 SE2d 134) (1983). Patterson was unable to satisfy this requirement since he pled guilty at his trial to the Clayton County ordinance charge. See Young v. City of Atlanta, 631 FSupp. 1498, 1505-1506 (N. D. Ga. 1986); see generally Commercial Plastics &c. Corp. of Ga. v. Molen, 182 Ga. App. 202 (1) (355 SE2d 86) (1987). We find no merit in Patterson’s argument that because the citations were issued on different dates they constituted separate prosecutions, since the charges resulted from one investigation.

(b) Similarly, the trial court also properly directed a verdict on Patterson’s claim that his property was taken without just compensation. “The constitutional provisions prohibiting the state or subdivisions from taking private property for a public purpose without just and adequate compensation are applicable only when the acts constitute a ‘taking’ of the property within the meaning of the law. (Cits.)” Bray v. Houston County, 180 Ga. App. 166, 167 (348 SE2d 709) (1986); see Ga. Const. 1983, Art. I, Sec. III, Par. I; Trussell Svcs. v. Montezuma, 192 Ga. App. 863, 864 (386 SE2d 732) (1989). Here there was no evidence that Patterson’s property was “taken,” or even damaged, so as to entitle him to compensation. In contrast to Patterson’s claim, the evidence showed that the officers involved in the investigation of Mr. P’s were acting pursuant to the police powers of the state. See Bray, supra; McCoy v. Sanders, 113 Ga. App. 565 (148 SE2d 902) (1966).

(c) The trial court properly directed a verdict on Patterson’s claim that the defendants’ actions constituted a malicious interference in the use and enjoyment of his property. Georgia recognizes a cause of action where one maliciously, wrongfully and with intent to injure, harms the business of another. Bodge v. Salesworld, Inc., 154 Ga. App. 65 (267 SE2d 505) (1980). Here, we find no evidence of the requisite malice and intent necessary to sustain this count.

(d) The trial court properly granted the motion for directed verdict with respect to Patterson’s claim of a violation of public duty. This claim seems to be that the defendants willfully and wantonly violated their public duty by injuring Patterson’s business, depriving him of the use and enjoyment of his property and depriving him of equal protection of the laws under the Ga. Const. 1983, Art. I, Sec. I, Pars. I and II. The part of this count which alleges that the public officials deprived him of the use and enjoyment of his property is discussed in subparts (b) and (c) above. As is discussed above, this part of the claim is without merit since there was no “taking” shown and because there was no evidence of intent to interfere with his business.

The portion of this count which alleges that Patterson was denied equal protection of the laws is also without merit. A successful equal protection claim requires a showing of purposeful discrimination. Spencer v. McCarley Moving &c. Co., 174 Ga. App. 525 (330 SE2d 753) (1985); Smith v. State of Ga., 684 F2d 729 (11th Cir. 1982), appeal after remand, 749 F2d 683 (11th Cir. 1985). The claim requires that the action taken by the government was arbitrary and illegal. See Spencer, supra at 528. Absent an implication of a fundamental right or a suspect classification, local economic regulation is presumed constitutional under equal protection if it is rationally related to legitimate state interests. Silverstein v. Gwinnett Hosp. Auth., 861 F2d 1560 (11th Cir. 1988).

Here, we find no evidence that the county’s treatment of Mr. P’s was arbitrary or that it differed from that of other establishments for any constitutionally impermissible reason. To the contrary, the evidence indicated that the county’s investigation of Mr. P’s was reasonable and was responsive to numerous complaints about the business.

(e) The trial court properly directed a verdict on Patterson’s hodgepodge claim under 42 USC § 1983. Essentially, this claim alleges that the police conspired to force him out of business and thereby violated his constitutional right to pursue an occupation. In appropriate circumstances, 42 USC § 1983 allows redress for arbitrary interference in, and harassment of, a business by the police. See, e.g., Benigni v. City of Hemet, 879 F2d 473 (9th Cir. 1988); Lykken v. Vavreck, 366 FSupp. 585, 587-599 (D.C. Minn. 1973).

In order to pursue an action of this nature, a plaintiff “ ‘must show (1) “that he has been deprived ‘of a right secured by the “constitution and laws” of the United States,’ ” and that (2) the defendant acted under color of state law.’ ” Franklin v. Piggly Wiggly, 175 Ga. App. 20, 21 (332 SE2d 329) (1985). We can find no deprivation of a federal constitutionally protected interest resulting from an abuse of governmental power sufficient to maintain this claim. See Rymer v. Douglas County, 764 F2d 796, 801 (11th Cir. 1985). Furthermore, there was no evidence that the county and police actions constituted a deprivation of Patterson’s constitutional rights pursuant to an impermissible or corrupt policy which was intentional and deliberate. See Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892) (1984). As a matter of law, the evidence Patterson presented did not rise to the level of egregiousness necessary to maintain an action under § 1983 and the trial court properly directed the verdict on this claim.

(f) The trial court was correct in directing a verdict on Patterson’s due process claim. “Constitutional due process of law includes notice and hearing as a matter of right where one’s property interests are involved.” Hamilton v. Edwards, 245 Ga. 810 (267 SE2d 246). (1980). There was no evidence that the notice given to Patterson or his opportunity for a hearing were constitutionally deficient.

In conclusion, Patterson’s claim that the court erred in its evaluation of the evidence is without merit since the trial court properly directed a verdict as to each element of Patterson’s claim.

3. In four additional enumerations of error, Patterson claims that the trial court erred in directing the verdict since there was evidence of a conspiracy between the defendants. Although Patterson appears to concede that there was no direct evidence of a conspiracy, he argues that the logical inference from the facts would be that a conspiracy existed.

We do not agree. “A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some unlawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage. [Cits.] Thus, where the act of conspiring is itself legal, the means or method of its accomplishment must be illegal.” (Cits.) Cook v. Robinson, 216 Ga. 328, 329 (1) (116 SE2d 742) (1960).

Because there was neither evidence of a tort nor evidence that the county or police officers acted to achieve an unlawful end or a lawful end by unlawful means, the direction of the verdict was proper.

4. In four other enumerations of error, Patterson claims that in various ways, the trial court misunderstood the relevant immunity principles. Because of the result reached in Division 2 above, we need not address the immunity principles relevant to this case.

5. In his eleventh and sixteenth enumerations of error, Patterson claims that the trial court erred in finding no evidence of his damages. Because of our conclusions above, we need not address these enumerations.

6. In his thirteenth enumeration of error, Patterson complains of various evidence which he claims was erroneously admitted. “Where a case is tried before a judge without a jury, it is presumed that judgment was rendered only upon the competent and legal evidence before him; consequently, if illegal evidence was admitted, it does not require a new trial.” (Citations and internal quotations omitted.) C & S Bank of Dublin v. Morris &c. Bldg. Corp., 243 Ga. 169, 170 (2) (253 SE2d 89) (1979); see also Cannon v. Boesger, 172 Ga. App. 488 (323 SE2d 687) (1984). Here, we follow this presumption that the judge relied only upon admissible evidence in granting the directed verdict and find this enumeration is without merit.

7. Patterson’s fourteenth and fifteenth enumerations argue that the trial court erred in determining that the defendants were not bound by certain pleadings. We are unpersuaded by this argument.

Although Patterson’s assertion that an admission in judicio is conclusive as a matter of law is correct, the materials here were not conclusive admissions, as Patterson contends. Piedmont Aviation v. Washington, 181 Ga. App. 730 (353 SE2d 847) (1987); OCGA § 24-3-30. Similarly, the trial court’s refusal here to consider conclusive a non-party’s statements was proper. See generally OCGA § 24-3-31; Gregory v. J. T. Gregory & Son, 176 Ga. App. 788 (338 SE2d 7) (1985).

8. In a separate appeal, which was consolidated with the rest of the case after the notices of appeal were filed, Patterson enumerates as error the trial court’s post-trial award of attorney fees and expenses to the defendants under OCGA § 9-15-14 (a). Under the instant circumstances this issue is directly appealable. Rolleston v. Huie, 198 Ga. App. 49 (4) (400 SE2d 349) (1990).

Decided July 1, 1991

Reconsideration denied July 25, 1991

James Patterson, pro se.

England, Weaver & Kytle, George M. Weaver, Foster & Foster, Michael D. Anderson, Meadows & Associates, Richard D. Schrade, Jr., for appellees.

Patterson, citing Felker v. Fenlason, 197 Ga. App. 476 (398 SE2d 754) (1990), argues that because the defendants’ motion for summary judgment was not granted in its entirety, the award of attorney fees was improper. We do not agree.

Although in Felker, supra, this court determined that the trial court’s denial of the defendants’ motion for summary judgment was “ ‘sufficient to constitute a “binding determination” that (that claim) did not lack substantial justification so as to render it frivolous, groundless or vexatious, Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 615 (379 SE2d 555) (1989),’ ” a different conclusion is mandated in this case. We do not read Felker as prohibiting an award of attorney fees under OCGA § 9-15-14 simply because a claim has survived a motion for summary judgment.

Here, in contrast to Felker, the trial court granted defendants’ motion for summary judgment as to one count of the complaint and also dismissed two of the defendants from the case. At the conclusion of Patterson’s evidence at trial, the court granted the defendants’ motion for directed verdict, and ruled that although Patterson’s complaint alleged facts which if believed would have afforded a basis for relief, that after more than a week of presenting evidence, he had failed to present any believable facts with respect to any of his claims. Additionally, the trial court found that Patterson had made inaccurate representations regarding his claim, that he had totally failed in presenting evidence of damages and that the complaint was in bad faith, was brought for purposes of delay, and was groundless and vexatious in nature. Accordingly, we find no abuse of discretion in the trial court’s award. See Griffiths v. Phenix Supply Co., 192 Ga. App. 651 (385 SE2d 789) (1989); Haggard v. Bd. of Regents, 257 Ga. 524 (360 SE2d 566) (1987).

Judgment affirmed in Case No. A91A0546 and in Case No. A91A0725.

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

       It is important to note that in Benigni, supra, the City failed to move for a directed verdict, and therefore the inquiry on appeal was limited to whether there was any evidencce to support the verdict. Id. at 476.


text:
    A91A0630.
    CHEEKS v. NOVATEL CARCOM, INC.
    (409 SE2d 229)
   Cooper, Judge.

Appellee, a corporation in the business of manufacturing and selling telephone equipment, entered into an agreement to sell telephone equipment to National Celstar, Inc. (“Celstar”). Appellant, an officer and shareholder of Celstar, executed an unconditional personal guaranty of the debts of Celstar. In 1989, Celstar ceased operations, and appellee and appellant entered into discussions regarding the outstanding indebtedness owed by Celstar to appellee. In a letter dated November 22, 1989, appellee confirmed an agreement between appellant and appellee to settle Celstar’s outstanding indebtedness for $74,300, provided that appellee received a check for that amount before November 29, 1989. In a letter dated November 27, 1989, appellant contended that appellee owed Celstar for warranty work in the amount of $52,500 and enclosed a check for $21,800. The check included language that it was in full payment of all claims. Appellee returned the check to appellant and notified appellant that if appellee did not receive a check for $74,300 by December 15, 1989, appellant would be held liable for the entire outstanding indebtedness owed by Celstar, which was an amount in excess of $135,000. On December 19, 1989, appellant filed a declaratory judgment action in which he requested that the court declare the debt owed by appellant to appellee to be $21,800. Appellant paid into the registry of the court the sum of $21,800 as payment in full of all claims of appellee against appellant. Appellee answered the declaratory judgment action and counterclaimed against appellant for the entire outstanding indebtedness allegedly owed by Celstar. Subsequently, appellee filed a motion for partial summary judgment seeking a disbursement of the $21,800 to appellee. Appellant contended that any disbursement of the funds would work an accord and satisfaction of the entire debt. The trial court granted appellee’s motion for partial summary judgment, finding that appellant had admitted liability to appellee in the amount of at least $21,800 and that the disbursement of the funds would not constitute an accord and satisfaction. Appellant brings this appeal from the trial court’s order.

1. Appellant first contends that the court erred in concluding that the disbursement did not constitute an accord and satisfaction. OCGA § 9-11-67 provides: “In an action in which any part of the relief sought is a judgment for a sum of money ... a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court. . . .” Appellant argues that because he wrote on the check, “payment in full of all claims,” the disbursement of the funds operated as an accord and satisfaction. We do not agree. “Accord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed.” OCGA § 13-4-101. “Like any other contract, accord and satisfaction requires a meeting of the minds as to the subject matter embraced therein, if it is to be valid and binding. [Cits.] Where there is no agreement to settle all matters in dispute, no accord and satisfaction result. [Cits.]” Wallace v. Harrison, 166 Ga. App. 461 (2) (304 SE2d 487) (1983). As the trial court correctly noted in its order, the granting of a disbursement of the funds did not involve an agreement between the parties or an acceptance of the funds by appellee in total satisfaction of its claim.

Decided June 24, 1991

Reconsideration denied July 25, 1991

Zion, Tarleton & Siskin, John J. Tarleton, Jay M. Sawilowsky, for appellant.

Goldstein & Schatten, Lee S. Goldstein, for appellee.

2. Appellant also argues that the trial court lacked authority to disburse the funds so as to remove the condition that the funds represented payment in full of all claims. We find that the trial court had authority to determine which party was entitled to the . funds and to make disbursement in accordance with its determination. See Gulf States Utilities Co. v. Ala. Power Co., 824 F2d 1465, 1474 (5th Cir. 1987). In In re Dept. of Energy &c. Litigation, 124 FRD 217, 219 (D. Kan. 1989), the court, construing the federal counterpart to OCGA § 9-11-67, held that Rule 67 of the Federal Rules of Civil Procedure could not be used as a means of altering the contractual relationship and legal duties of the parties. In the instant case, appellant attempted to impose a condition on appellee’s acceptance of the funds which, as a practical matter, rendered the funds unavailable for withdrawal by appellee unless appellee agreed to the condition. We conclude that any such condition was invalid because otherwise, appellant would not have deprived himself of the use of the money pending disposition of the action. See United States ex rel. Garrett v. Midwest Constr. Co., 619 F2d 349, 353-354 (5th Cir. 1980). Accordingly, we find no error with the trial court’s disbursement of the funds notwithstanding the condition.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Pope, Judge.

text:
    A91A0640.
    JONES v. THE STATE.
    (409 SE2d 251)
   Pope, Judge.

Defendant Murray Edwin Jones appeals his conviction following a bench trial for the offense of driving under the influence of alcohol. We affirm.

1. Defendant first argues the trial court erred in denying his motion to suppress the evidence against him because it was obtained as a result of an illegal stop. The officer who arrested defendant on suspicion of DUI testified he pulled the defendant’s vehicle over after observing him hesitate after the left turn signal for the lane in which he was traveling turned green. Defendant’s vehicle was in the inside lane of two left turn lanes. Once he proceeded to make the left turn, defendant swerved right into the outside turn lane and then overcorrected, swerved left and crossed the centerline of the road. The officer’s decision to stop defendant was based on his erratic driving. “The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense. O’Keefe v. State, 189 Ga. App. 519 (1) (376 SE2d 406) (1988); see also Hartley v. State, 159 Ga. App. 157 (1) (282 SE2d 684) (1981).” Gossett v. State, 199 Ga. App. 286 (404 SE2d 585) (1991). Thus, the trial court did not err in denying defendant’s motion to suppress.

2. The trial court did not find defendant guilty on the count of the accusation charging him with having an illegal blood alcohol level but expressly ruled that defendant was found guilty only on the count charging him with being intoxicated to the extent that he was a less safe driver. Thus, even if the trial court erred in admitting evidence of his alcohol concentration level it was harmless error.

3. Finally, defendant argues the trial court erred in admitting evidence of the arresting officer’s horizontal gaze nystagmus evaluation upon the defendant. The officer also testified that defendant failed several other field sobriety tests. “[I]t is evident that the [horizontal gaze nystagmus] evaluation was only one of a series of observations [the evidence of which supports the verdict that defendant was a less safe driver]. In the context of the overwhelming evidence of guilt in this case, the admission of the testimony in question must be considered harmless.” Ross v. State, 192 Ga. App. 850 (1) (386 SE2d 721) (1989).

Judgment affirmed.

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

On Motion for Reconsideration.

One of the grounds for defendant’s motion to suppress was that he was denied the right to the independent chemical test of his choice. The record shows he requested a urine test but the arresting officer who transported him to the hospital for an independent test erroneously informed him that only a blood test would measure alcohol concentration and that a urine test was not appropriate. Defendant then ordered and was administered a blood test. When defendant returned to the police station for further processing, he again requested a urine test. The officer understood that defendant had the funds to pay for an additional test, but apparently he was denied the opportunity to obtain one. In Division 2 of the opinion we ruled that even if the State’s evidence of his blood alcohol level should have been excluded for failure to allow him the independent chemical test of his choice, the admission was harmless error because defendant was not convicted on the charge of having an illegal blood alcohol level. On motion for reconsideration defendant argues that because he was denied the right to an independent test of his choice, the trial court erred in admitting even that evidence which related to the charge that he was a less safe driver, because he was denied his right of due process to establish potentially exculpatory evidence that he was presumptively not intoxicated pursuant to OCGA § 40-6-392 (b) (1).

OCGA § 40-6-392 (b) (1) creates a statutory presumption that an individual whose alcohol concentration level is 0.05 grams or less is “not under the influence of alcohol, as prohibited by [the less safe driver paragraph] ... of Code Section 40-6-391.” Thus, we agree with defendant that, separate and apart from the statutory right, created by OCGA § 40-6-392 (a), to an independent test when the State administers an alcohol concentration test, a defendant in a DUI case has a due process right to establish potentially exculpatory evidence if he requests an independent chemical test. The only meaningful time for obtaining such evidence is at the time of arrest. See Nelson v. State, 135 Ga. App. 212 (217 SE2d 450) (1975). While it may be true that a defendant is denied his statutory right to “a chemical test or tests” if he is not permitted to order the test of his choice, we cannot say his due process rights are denied if he is not permitted to order the test of his choice, so long as he is provided the opportunity to establish potentially exculpatory evidence by a competent and approved method.

The record in this case shows defendant was taken to a hospital where he ordered and was administered a blood alcohol concentration test. Thus, he was afforded the opportunity to establish potentially exculpatory evidence. Under these circumstances, even if he was wrongly prevented from obtaining another type of chemical test he was not deprived of his due process rights.

Motion for reconsideration denied.

Decided July 1, 1991

Reconsideration denied July 25, 1991

Awtrey & Parker, J. Lynn Rainey, for appellant.

Patrick H. Head, Solicitor, Robin M. Smith, Beverly M. Hartung, Assistant Solicitors, for appellee.


author: Banke, Presiding Judge. Carley, Judge,

text:
    A91A0004.
    HOLLAND et al. v. ALLSTATE INSURANCE COMPANY.
    (409 SE2d 79)
   Banke, Presiding Judge.

The appellee insurance company filed this declaratory judgment action to determine its rights and obligations under a policy of motor vehicle accident insurance issued to one of the two appellants herein, Richard Holland. The other appellant, Chad Holland, was involved in an accident while driving the insured vehicle. The appellee denied coverage on the ground that the policy had been cancelled for nonpayment of premium prior to the accident. The case is before us on appeal from the grant of its motion for summary judgment.

The policy had been in force for several years prior to the accident. On numerous occasions during that period, the premium had not been paid when due; and on at least four of those occasions, the appellee had issued Holland a cancellation notice stating that the policy was being cancelled for nonpayment of premium. The policy had most recently been renewed on May 19, 1988, for a period of six months. On June 6, 1988, a check for $357.18 had been sent to the appellee in partial payment of the premium for this renewal. The remainder of the premium was due on July 19, 1988, but was not paid by that date. On July 27, 1988, the appellee mailed Holland a cancellation notice (which he denies having received) stating that the policy would be cancelled effective August 10, 1988, at 12:01 a.m. unless payment was received before then. The payment was not mailed, however, until September 14, 1988. The accident occurred two days later on September 16, 1988. The appellee was notified of the accident on September 19, 1988; and on September 23, 1988, it sent Holland a letter thanking him for the payment but informing him that the coverage had been cancelled. Enclosed with this letter was a check for partial refund of the payment.

In response to interrogatories propounded by the appellants, the appellee asserted that there had been four previous occasions when the policy had been “out of force” due to nonpayment of the premium. However, there is no suggestion in the record that the appellee had ever rebated any portion of Holland’s premium payments to compensate him for these periods when the insurance had supposedly been “out of force”; and the appellants submitted documentary evidence showing that on at least three occasions when the premium payment had been submitted after the announced cancellation date, the appellee had responded with a notice stating that it was continuing the coverage “without interruption.” Asked during his deposition why he had waited until September 14, 1988, to make the premium payment at issue, Holland testified: “I was suffering from some adverse financial circumstances and I was waiting as long as I could in order to make the payment, but to keep the policy from lapsing or getting into a situation where I wasn’t covered. Because my perception at the time the payment was made is that I was covered. It’s just nothing more than coincidence that the check was made and sent on the 14th and the accident occurred on the [16]th.” Held:

1. “[Wjhere, by a course of conduct, one leads another to believe that he will not insist upon the strict terms of the contract, he will not be heard to complain because the other contracting party relies upon his acquiescence[,] as evidenced by a course of conduct in similar situations. [Cits.]” Southern Life Ins. Co. of Ga. v. Citizens Bank of Nashville, 91 Ga. App. 534, 538 (86 SE2d 370) (1955). See generally OCGA § 13-4-4. “Whether the conduct of the parties constitutes a mutual departure from and waiver of a contract provision ordinarily is a question of fact for the jury. [Cits.]” Southwest Plaster &c. Co. v. R. S. Armstrong & Bros. Co., 166 Ga. App. 373, 374 (304 SE2d 500) (1983).

We conclude that a fact issue exists in this case as to whether, by reinstating the coverage “without interruption” upon receipt of the premium on several previous occasions after the policy had supposedly been cancelled for nonpayment of premium, the appellee had led the insured to believe it would continue to follow this practice in the future, thereby creating a quasi-new agreement with him to that effect. One effect of the appellee’s conduct in this regard was, of course, to enable it to charge the insured for past periods of non-coverage, during which, had a claim arisen, it could have taken the position that the policy was no longer in effect, just as it did in the present case. Indeed, there is absolutely no reason to believe that, but for the intervening accident which gave rise to this litigation, the appellee would not once again have accepted the late payment and reinstated the coverage “without interruption.” Accordingly, because it appears from the evidence that the payment in question was in fact tendered to the appellee prior to the accident, we hold that a fact issue remains as to whether the coverage was back in force at the time the accident occurred.

2. The appellee contends that even if a mutual departure from the policy provisions occurred so as to give rise to a quasi-new agreement, the cancellation was nevertheless effective because it was carried out in compliance with OCGA §§ 33-24-44 and 33-24-45. However, the issue in this case, as we see it, is not whether the insurance was properly cancelled for nonpayment of premium prior to the accident but whether, as a result of a quasi-new agreement created by the past conduct of the parties, the policy was reinstated following such cancellation.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Pope and Cooper, JJ., concur. Birdsong, P. J., Carley, Beasley and Andrews, JJ., dissent.

Carley, Judge,

dissenting.

Construing the evidence most strongly against appellee, it issued to appellant-defendant a policy of automobile insurance which was thereafter periodically renewed. In connection with several of those renewals, appellee was forced to give appellant notice of impending cancellation for nonpayment of premiums. In connection with several of those cancellation notices, appellee accepted late payment from appellant even after the specified cancellation date. When the policy was renewed on May 19, 1988, and the timely payment of the premium was not forthcoming, appellee again gave appellant notice that the policy would be cancelled unless payment of the premium was made by August 10, 1988. However, appellant did not mail the premium until September 14, 1988.

I cannot agree that OCGA § 13-4-4 is authority for reversing the grant of summary judgment in favor of appellee. When appellant failed to make timely payment of the premium, appellee did not acquiesce, but mailed him notice of its intent to cancel the policy unless payment of the premium was made by August 10, 1988. This notice was certainly sufficient to apprise appellant of appellee’s intention to rely upon the exact terms of the agreement. The majority holds that a genuine issue of material fact nevertheless remains because, on prior occasions, appellee had elected not to enforce such cancellation notices against appellant. While the intent of OCGA § 13-4-4 is to authorize a party to rely upon previous acceptances of his late payments, that authorized reliance lasts only until such time as he is given notice that his future conduct must be in conformity with the literal terms of the contract. It would be anomalous to hold that appellant, who had been given such notice, would nevertheless be entitled to ignore it based upon appellee’s previous acceptances of his late payments.

In my opinion, one who is given notice pursuant to OCGA § 13-4-4 must govern his future conduct by the literal terms of the contract and is not entitled to assume that, as in any prior instances, the exact terms of the contract will not be enforced against him. Having been given notice that his policy would be cancelled if the premium was not paid by August 10, 1988, appellant had no legal right under OCGA § 13-4-4 to assume that his policy would not be cancelled pursuant to that notice or that his cancelled policy would be reinstated. Since the undisputed evidence of record shows that appellee fulfilled any obligation that it may have owed to appellant under OCGA § 13-4-4, the trial court correctly granted appellee’s motion for summary judgment. See Murphy v. First Nat. Bank, 182 Ga. App. 788 (1) (357 SE2d 266) (1987). Accordingly, I must respectfully dissent.

Decided July 9, 1991

Reconsideration denied July 29, 1991.

Brock & Clay, Marjorie M. Rogers, for appellants.

Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., David D. Cookson, for appellee.

I am authorized to state that Presiding Judge Birdsong, Judge Beasley and Judge Andrews join in this dissent.