text:
    A91A1744.
    GREGG v. BARNES.
    (417 SE2d 206)
   Andrews, Judge.

Gregg and Barnes lived together from June 1987 until May 1990. In 1988, a daughter was born. In May 1990, Gregg moved out of state. It was her contention that she attempted to take the child and Barnes forcefully kept the child. None of the orders below resolved this issue.

On May 3, 1990, Barnes filed his petition for divorce, alleging a common law marriage and that the child was in his “custody.” The petition sought “temporary and permanent custody” of and support for the child which was then 18 months and 12 days old.

Service of this complaint was acknowledged by counsel for Gregg and jurisdiction over Gregg’s person at the time of filing was acknowledged. She filed a counterclaim stating that there was no marriage and that she had and was entitled to legal custody of the child. She also filed a motion to dismiss the complaint asserting that there was no marriage, the child was illegitimate, and she was entitled to custody under OCGA § 19-7-25.

At 1:30 p.m. on August 27, 1990, the date of the scheduled hearing, Barnes filed an “amendment” to his complaint, seeking to legitimate the child, citing as authority OCGA § 19-9-43, a provision of the Uniform Child Custody Act. The amendment alleged that the child was a resident of the county “and the Court has jurisdiction over the subject matter and person of said child.” The certificate of service showed hand-delivery to counsel for Gregg. At 3:12 p.m., that same day, a consent order was filed in which it was agreed that “all issues between the parties” could be tried by the court without a jury and that they should reappear on September 4 for the trial.

By order of November 6, 1990, after hearing testimony on September 4, the court concluded that “there is no contract of marriage between the parties.” The court then legitimated the child based on the amended complaint and did “hereby place permanent custody of the minor child” with Barnes, ordering Gregg to pay child support and setting up a visitation schedule for Gregg.

Gregg then filed a motion for new trial on the general grounds, newly discovered evidence and use of the wrong standard.

On April 17, 1991, the court entered its denial of the motion, including “Findings of Fact and Conclusions of Law,” reiterating that there was no common law marriage; that although there was controversy as to whether the child was “willingly surrendered” by or was “forcibly taken from” Gregg, “the child was physically located within the jurisdiction of the Court at the time” the petition for divorce was filed; that prior to the divorce proceeding, Barnes had never attempted to legitimate the child; that prior to the legitimation order the mother “was entitled to possession of the child as provided in OCGA § 19-7-25” and that the domicile of the child was that of the mother under OCGA § 19-2-4; but that notwithstanding all this, the court “concludes that [Gregg] and the minor child are subject to the jurisdiction of this Court,” the legitimation was granted, and Barnes was awarded “permanent custody.”

1. Considering the first three enumerations together, we determine whether the court erred in not dismissing the divorce complaint or entering judgment upon it when no marriage was found; whether Barnes had standing in that proceeding to contest custody of the child; and whether the court had jurisdiction of the child and the issue of its custody.

OCGA § 19-7-23 (1) defines a “child born out of wedlock” as one “whose parents are not married when that child is born or who do not subsequently intermarry.” At the time of the child’s birth, there was no ceremonial marriage existing between Barnes and Gregg nor had any court recognized the existence of a common law marriage. Whether or not a common law marriage exists is a question of fact, requiring proof of simultaneous existence of all elements of OCGA § 19-3-1. Edwards v. Edwards, 188 Ga. App. 821, 822 (1) (374 SE2d 791) (1988); see Brown v. Carr, 198 Ga. App. 567, 568 (402 SE2d 296) (1991).

First, considering Gregg’s motion to dismiss the complaint, it was, in essence, one for failure to state a claim upon which relief could be granted. However, the brief submitted by her in support of that motion contained factual allegations and argument. On August 27, 1990, several affidavits were filed to the effect that she and Barnes had never held themselves out as husband and wife and that he had publicly stated that they were not married. While no opposing affidavits were submitted at that point the court conducted an evidentiary hearing on the matter. Since the factual issue determined by the court, existence of a common law marriage, was disputed, denial of the motion to dismiss, converted to one for summary judgment when evidence and argument were submitted, was not error. Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519) (1982); Webb v. State Auto. &c. Ins. Co., 198 Ga. App. 609, 610 (402 SE2d 352) (1991).

Following the court’s determination that no common law marriage existed, there was pending Barnes’s prayer for custody of the child included in the complaint, Gregg’s counterclaim, setting out her claim that the child was illegitimate and custody of the child was hers alone, and the Petition to Legitimate filed by Barnes.

. Under OCGA § 19-7-22, “[a] father of a child born out of wedlock may render the same legitimate by petitioning the superior court of the county of his residence, [or] the county of residence of the child.” Therefore, there was jurisdiction for purposes of considering the legitimation. Under OCGA § 19-7-22, the mother is entitled to notice of the petition to legitimate and may voice objection. In re Application of Ashmore, 163 Ga. App. 194 (1) (293 SE2d 457) (1982); In re Pickett, 131 Ga. App. 159, 161 (205 SE2d 522) (1974). Here, the mother had notice and had additionally consented to try “all issues between the parties,” which included competing claims for custody of the child. Since no objection to the legitimation appears of record, we must assume that the evidence supported the amendment and the judgment of legitimation was authorized. OCGA § 19-11-15 (a) & (b); Hopkins v. Hopkins, 168 Ga. App. 144 (308 SE2d 426) (1983).

Pending the legitimation, the provisions of OCGA § 19-7-25 controlled as far as the issue of legal custody of the child as follows: “Only the mother of a child born out of wedlock is entitled to [her] custody, unless .the father legitimates him as provided in OCGA § 19-7-22. Otherwise, the mother may exercise all parental power over the child.”

While, prior to the judgment of legitimation, Barnes had no standing to raise any issue as to custody of the child, Hall v. Hall, 222 Ga. 820, 821 (152 SE2d 737) (1966), upon legitimation, the father stands in the same position as any other parent as to custody of the legitimated child and has a claim to parental and custodial rights. Mitchell v. Ward, 231 Ga. 671, 672 (203 SE2d 484) (1974); see Sims v. Pope, 228 Ga. 289, 291 (185 SE2d 80) (1971).

While legitimation provides standing to the father, it does not, ipso facto, effect a change in custody. Sims, supra; see generally In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987) (discussing continuum of unwed father-child relationships with assigned degrees of protection afforded to rights to custody when child to be adopted by third parties). Legitimation itself allows the child to be capable of inheriting from the father in the same manner as if born in lawful wedlock and authorizes the court to order the father to pay support. OCGA § 19-7-22.

Consideration of the issue of custody, however, is not precluded in a situation where that claim as well as legitimation is pending before the court by consent of the parties and there is jurisdiction of the parents, child, and subject matter in the court.

Barnes contended that the court had a separate basis for jurisdiction over the child custody issue by virtue of the Uniform Child Custody Jurisdiction Act. OCGA § 19-9-41 et seq. OCGA § 19-9-43 (a) states that “[a] court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if: (1) This state: (A) Is the home state of the child at the time of the commencement of the proceeding; . . .” Here, the child had continually lived in Georgia and this was the child’s home state. OCGA § 19-9-42 (5). Therefore, the court had jurisdiction of the child and the issue of its custody. Kemp v. Sharp, 261 Ga. 600 (409 SE2d 204) (1991); compare Craighead v. Davis, 162 Ga. App. 145, 147 (2) (290 SE2d 358) (1982).

Decided March 13, 1992

Reconsideration denied March 25, 1992

Thomas S. Sunderland, for appellant.

2. The fourth enumeration alleges error in the court’s denial of the motion to dismiss and consideration of the issue of child custody when the father illegally withheld custody of the child during the proceeding. Gregg is correct that she was the legal custodian prior to the legitimation and that the courts of this state, pursuant to the Uniform Child Custody Act, “[a]s a matter of public policy, . . . refuse to provide a forum in Georgia for relitigating custody when the noncustodial parent resident in Georgia improperly has removed the child from the physical custody of the custodial parent who resides in another state.” Etzion v. Evans, 247 Ga. 390, 392 (1) (276 SE2d 577) (1981); Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987).

Here, however, Gregg had placed the issue of custody before the court and consented to the court’s resolution of it. Once the legitimation issue was resolved, Barnes had an equal right to the child’s physical and legal custody and the issue of his illegal withholding of the child became moot. OCGA § 5-6-48 (b) (3).

3. The fourth and fifth enumerations allege error in granting the legitimation because Gregg was not given a chance to present evidence regarding that issue and the legitimation was filed in bad faith.

Regarding the former, since no transcript of proceedings and evidence has been provided, Gregg has failed to show error as alleged and this court assumes the trial was properly conducted. Also, as to the second, pretermitting the issue of whether motive is relevant to the issue of legitimation, there has likewise been a failure to carry the burden of showing error and harm by the record. Hendricks v. Emerson, 199 Ga. App. 208, 209 (2) (404 SE2d 279) (1991).

Judgment affirmed.

Sognier, C. J., concurs. McMurray, P. J., concurs in the judgment only.

Debra K. Greeson, for appellee.

       No transcript was requested in the notice of appeal and we have none before us.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A91A1857.
    BRANCH v. MAXWELL et al.
    (417 SE2d 176)
   Sognier, Chief Judge.

David J. Maxwell, filed a complaint, as amended, against Ricky Wayne Branch and Bonnie Knorzer as administrator of the estate of Willie Faye Hendricksen to recover damages for injuries incurred when Branch’s car, in which Maxwell was a passenger, collided with a car driven by Hendricksen; who was killed in the collision (and will be referred to as the “deceased”). The trial court granted a motion to intervene filed by Donna Faye Glenn as guardian of Ronald Frederick Hendricksen, the disabled adult son of the deceased, and aligned Glenn as a plaintiff asserting a claim against Branch. At the trial, which was bifurcated into liability and damages segments, the jury entered a verdict allocating responsibility for the collision at 72 percent for Branch and 28 percent for the deceased. After the jury assessed damages, the court entered judgment for Maxwell against both defendants and for Glenn against Branch. Branch appeals from the judgment entered against him as to Glenn.

Appellant was test-driving his high-performance automobile with Maxwell, a mechanic, on the afternoon of January 10, 1989. They travelled north on State Route 38, a five-lane road with two travel lanes in each direction, a center universal turn lane, and a posted speed limit of 55 mph. As they crested a hill before the intersection of the highway with a county road, they saw the deceased’s car stopped across both northbound lanes approximately 1,600 feet ahead. Appellant began decelerating. When he realized the deceased was looking in the opposite direction and waiting for the southbound lanes to clear, he slammed on his brakes and moved into the left lane and toward the center turn lane. The deceased, however, began to move forward into the turn lane, apparently intending to turn left into the southbound lanes of the highway. Appellant hit the deceased’s car broadside, propelling it 54 feet into a roadside ditch.

Appellant admitted he was driving his car at a high speed to check the operation of the passing gear. Both he and Maxwell testified that he was travelling at 85 mph as he approached the hill and that he accelerated as he ascended the hill. The state trooper who investigated the collision estimated that appellant had slowed to 70 or 75 mph at the time he applied his brakes, and testified further that the skid marks left by appellant’s car showed that he began braking 145 feet before impact. An accident reconstruction expert calculated appellant’s speed at 74 mph at the time he began braking, 49 mph at impact, and as high as 135 mph at the crest of the hill. The expert also opined that had appellant begun braking lightly as soon as he saw the deceased, he could have stopped several hundred feet before he reached her car even if he had been travelling at his car’s maximum speed. Appellant admitted he could have avoided the collision by slowing to a stop and that a decision either to swerve to the left or right or to continue travelling straight inevitably would have caused a wreck.

1. Appellant first enumerates as error the grant of appellee’s motion to intervene. Appellant contends intervention was improper because appellee’s claim had insufficient commonality with the main case; the presence of appellee prejudiced appellant’s defense against Maxwell’s claim; and the effect of the intervention was to mandate nonconsensual consolidation in violation of OCGA § 9-11-42 (a).

Appellee based her motion on OCGA § 9-11-24 (b) (2), which provides for permissive intervention upon timely application “[w]hen an applicant’s claim or defense and the main action have a question of law or fact in common.” When a trial court is exercising its discretion in determining whether to allow intervention, “the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties,” id. at (b), and other relevant circumstances such as the degree to which the intervenor would be affected by the outcome in the underlying case. Allgood v. Ga. Marble Co., 239 Ga. 858, 859 (239 SE2d 31) (1977). We will not reverse a trial court’s decision on a motion to intervene unless the court abused its discretion. Id.

We find no such abuse of discretion in this case. Contrary to appellant’s contentions, the questions of fact and law raised by appellee were common to those of the deceased, as both sought to establish appellant’s sole liability for the collision. See generally Virginia Highland Assoc. v. Allen, 174 Ga. App. 706, 708 (1) (330 SE2d 892) (1985). We find nothing in the record to support appellant’s claim of undue prejudice. No additional evidence was adduced during the liability portion of the trial that would not have been introduced if only Maxwell’s claim against appellant and the deceased had been tried (and appellant has neither appealed from nor provided this court with the transcript of the damages segment of the trial). Even without appellee’s presence, the charge on last clear chance would have been appropriate had the deceased’s administrator exercised her right to assert a cross-claim against appellant pursuant to OCGA § 9-11-13 (g). Moreover, we fail to see how the giving of this charge harmed appellant, as the jury assessed liability against both defendants.

Finally, we do not agree with appellant’s characterization of OCGA § 9-11-42 (a) as a rule precluding consolidation of claims involving common questions of law or fact if the parties do not consent. We find that OCGA § 9-11-42 (a) parallels rather than limits OCGA § 9-11-24 (b): Section 9-11-42 (a) applies to joinder of separate actions, and Section 9-11-42 (b) governs intervention by additional claimants in a single action.

2. We find no merit in appellant’s enumeration on the general grounds. Our review of the transcript discloses substantial evidence to support the jury’s conclusion that appellant’s conduct was the primary cause of the collision. Appellant admitted driving greatly in excess of the speed limit and acknowledged that he could have stopped his car without colliding with the deceased. Contrary to the assertions in his brief, no witness — including appellant — gave any testimony at trial that could be construed to suggest either that the deceased pulled out into the highway from the intersecting county road after appellant crested the hill or that she failed to yield at the stop sign before proceeding into the intersection.

3. Appellant next contends that the trial court improperly refused to grant him permission to interview the opposing parties’ expert witness. We do not agree. Appellant’s characterization of the events is not supported by the record. Instead, the record reveals that appellant was afforded numerous opportunities to depose the witness but declined to do' so. We cannot now say that the trial court’s rulings were unreasonable because appellant waived all prior opportunities available to him. See Ellis v. Cameron & Barkley Co., 171 Ga. App. 211, 212 (3) (319 SE2d 38) (1984). The cases appellant cited that involved surprise witnesses do not apply because this witness was disclosed well in advance of trial. Accordingly, this enumeration is without merit.

4. We have reviewed the transcript carefully and find no abuse of the trial court’s discretion in prohibiting appellant from further questioning the investigating state trooper concerning the nature of the injuries suffered by Maxwell and appellant. See generally Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 266 (4) (387 SE2d 593) (1989).

5. Appellant’s remaining enumerations present challenges to the court’s charge to the jury.

(a) The trial court properly rejected appellant’s requested charges on the duties of drivers to stop and yield at intersections as not adjusted to the evidence because, as discussed in Division 2, supra, no evidence was adduced to suggest that the deceased violated any such duty. See generally Baxley Veneer &c. Co. v. Maddox, 198 Ga. App. 235, 239 (6) (401 SE2d 282) (1990).

(b) Appellant’s contention that the court failed to charge the jury on proximate cause is not supported by the record. Although the court did not expressly define proximate cause as part of the charge on negligence, the court previously had given an extensive charge on proximate cause generally, and thus the charge as a whole adequately informed the jury of the applicable law. See Clemons v. Atlanta Neurological Institute, 192 Ga. App. 399, 401-402 (384 SE2d 881) (1989).

(c) The facts in this case were substantially similar to those in Hurst v. J. P. Colley Contractors, 167 Ga. App. 56-57 (1) (306 SE2d 54) (1983), in which we authorized a charge on last clear chance. Contrary to appellant’s assertions, evidence was adduced to show that even though the deceased’s actions may have placed her in a position of peril, appellant had the last opportunity to avoid the collision and was negligent in failing to do so. See Harrison v. Feather, 178 Ga. App. 35, 36 (342 SE2d 1) (1986). Accordingly, we find no error in the giving of this charge.

(d) A charge on assumption of risk is appropriate when the plaintiff voluntarily and unreasonably proceeds to encounter a known danger. Newman v. Collins, 186 Ga. App. 595, 596-597 (367 SE2d 866) (1988). The trial court did not err by denying appellant’s request for such a charge because the evidence established that the deceased had already pulled into the northbound travel lanes before appellant’s car became visible at the top of the hill. Additionally, since the deceased had a visibility of 1,600 feet in appellant’s direction, we cannot say that she could be considered unreasonably to have encountered a known danger. Thus, in comparison to Newman, the court’s charge on avoidable consequences was the proper charge.

(e) The court charged that “following too closely without. . . due regard for the speed of vehicles ahead and the traffic on and condition of the roadway is [unlawful].” This instruction was based on OCGA § 40-6-49 (a), which applies to any vehicle “which approaches] from the rear any other vehicle or vehicles stopped or slowed to make a lawful turn.” Id. at (d). Since there was some evidence from which the jury was authorized to infer that the deceased was stopped to make a lawful left turn into a southbound lane of the highway, see OCGA § 40-6-123 (a), and that appellant approached her car from behind, the court did not err by charging this Code section.

(f) Finally, we find no error in the court’s explanation to the jury of the special verdict form which previously had been agreed to by all parties, including appellant. When a special verdict form is used, the trial court is required to “give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.” OCGA § 9-11-49 (a). Appellant’s contention that the effect of the court’s instructions was to direct a verdict for Maxwell is without merit. Pretermitting the question whether appellant may complain of the effect of the charge on Maxwell’s case when he appealed only from the judgment in favor of appellee, we agree with the trial court that with regard to Maxwell’s case the evidence required a finding of negligence on the part of at least one defendant, as this was not an incident that could have occurred in the absence of negligence, and thus we find the court’s explanation of the verdict form was correct.

Decided March 4, 1992

Reconsiderations denied March 20, 1992 and March 25, 1992

Zorn & Caldwell, William A. Zorn, for appellant.

Lissner, Killian & Cunningham, Robert P. Killian, Whelchel, Brown, Readdick & Bumgartner, Roy J. Boyd, Jr., Wilkes, Johnson & Smith, Ken W. Smith, for appellees.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A2191, A91A2192.
    A91A2193, A91A2194.
    TRUST COMPANY BANK OF MIDDLE GEORGIA, N. A. v. STUBBS; and vice versa. TRUST COMPANY BANK OF MIDDLE GEORGIA, N. A. v. JONES; and vice versa.
    (417 SE2d 373)
   Pope, Judge.

These four cases arise from a dispute between plaintiffs Doctors Wytch Stubbs and G. R. Jones and defendant Trust Company Bank of Middle Georgia, N. A. (the “bank”) concerning the use of two certificates of deposit (“CDs”) held by the doctors’ pension plans which were pledged as collateral for certain debts of Macon Auto Auction, Inc. (“Macon Auto”). The doctors contend their agreement with the bank allowed the CDs to be used only as collateral for a line of credit. The evidence is undisputed that the bank advanced a loan to Macon Auto collateralized by the doctors’ CDs.

Macon Auto was an automobile auction company which operated by purchasing automobiles from sellers through the use of drafts. Macon Auto would then sell the vehicles at auctions. Buyers would purchase vehicles also using a draft. The use of drafts insured that no money exchanged hands until proper title and documentation on the vehicle was transmitted between the parties to the transaction.

Acting through its president Ken Brown, Macon Auto opened a checking account at the bank. Marvin Snow was the bank officer in charge of the Macon Auto account. Although the bank initially agreed to given Macon Auto immediate credit for its drafts, the credit given Macon Auto’s drafts soon exceeded collected funds by at least $100,000. Snow informed Brown that the bank could no longer give Macon Auto immediate credit for its drafts unless sufficient liquid assets were deposited with the bank to cover the “gap” or “interim” deficiencies created during the period when the outstanding drafts payable to Macon Auto were uncollected. Brown did not have any liquid assets available to deposit with the bank.

At approximately the same time the bank refused to allow immediate credit for Macon Auto’s drafts, one of Dr. Jones’ patients who was an auctioneer for Macon Auto, approached Dr. Jones about an investment opportunity with Macon Auto. Dr. Jones, in turn, discussed the investment opportunity with his friend Dr. Stubbs. Brown met with Drs. Stubbs and Jones to discuss an arrangement in which the doctors would deposit collateral with the bank to cover certain debts of Macon Auto and in exchange be paid certain fees for the use of their funds. After this meeting in August 1985, Drs. Stubbs and Jones entered into separate agreements with Macon Auto in which it was agreed: (1) the doctors would deposit with the bank CDs “to be used as collateral for a line of credit for Macon Auto”; (2) the doctors would be paid certain fees for the use of their certificates as collateral; (3) Macon Auto would keep accurate records of all transactions which would be available to Drs. Jones and Stubbs; and (4) Drs. Jones and Stubbs would be listed as co-loss payees on an insurance policy maintained by Macon Auto. These agreements did not specify how the line of credit the doctors were collateralizing would operate.

Drs. Jones and Stubbs also engaged in written correspondence and at least one telephone conversation with the bank officer concerning the CDs prior to the time the CDs were deposited with the bank for Macon Auto’s benefit. In a telephone conversation between Drs. Jones and Snow, Snow allegedly represented to Dr. Jones the certificates would be used as collateral for a type of “gap” financing needed by Macon Auto due to its use of drafts, and Snow favorably recommended both Brown and Macon Auto.

By letter dated August 30, 1985, Dr. Stubbs sent the bank a certificate of deposit in the amount of $50,000 “to serve as collateral for Macon Auto . . . .” On September 4, 1985, Drs. Stubbs and Jones each signed an Owners Consent to Pledge of Collateral in which they agreed inter alia to pledge their CDs “for, any and all indebtedness, obligations or liabilities of every kind and nature” of Macon Auto. The bank’s attorney wrote to Jones on September 6, 1985 stating it was the bank’s understanding that the doctors’ pension plans wished to assign certain CDs with the bank to “secure the payment of debts of Macon Auto Auction.” The letter was consented to by both doctors as evidenced by their signatures on the bottom of the letter. On September 19, 1985, Dr. Jones transmitted to Snow the documentation requested by the bank for his certificate of deposit, including the certificate in the amount of $100,000, “to collateralize a line of credit for Mr. Ken Brown of the Macon Auto Auction, Inc.....” On September 26, 1985, the doctors entered into security agreements with the bank in which they agreed to sell, assign and transfer to the bank the CDs “to secure all existing and future indebtedness” of Macon Auto.

On September 26, 1985, after the CDs had been deposited, the bank made a loan in the amount of $150,000 to Macon Auto. On that same day, Snow mailed to Drs. Jones and Stubbs a transmittal letter which stated: “Enclosed you will find copies of the various documents pertaining to a loan of $150,000 made to Macon Auto Auction, Inc. dated September 26, 1985 on which your plans collateral was used.” Snow, however, did not include a copy of Macon Auto’s note with the documents.

Things did not go well at Macon Auto and approximately one year after Macon Auto received the loan proceeds, it defaulted on the loan and declared bankruptcy. The bank cashed the CDs and applied the proceeds to Macon Auto’s default. Jones and Stubbs brought separate suits against the bank seeking to recover their funds. In their first amended complaints, Drs. Jones and Stubbs set forth five claims against the bank: (1) fraud; (2) constructive fraud; (3) breach of good faith; (4) attorney fees; and (5) punitive damages. Plaintiffs also filed second amended complaints adding Count VI for breach of contract, and Count VII in which they asserted if their respective agreements with the bank were not breached, valid contracts between the parties were never formed.

The bank moved for summary judgment in both cases. The trial court granted the bank’s motion for summary judgment as to the first five counts contained in the first amended complaints. With regard to the claims contained in the second amended complaints, the trial court found that although an issue of fact existed as to whether a valid contract was ever entered into between the doctors and the bank, that fact was not material because if a valid contract had been formed, the bank breached it as a matter of law by failing to abide by its agreement to provide a limited line of credit to Macon Auto. If a valid contract had not been formed, then, as a matter of law, the bank had no right to maintain possession of or liquidate the CDs. In accordance with that finding, the trial court entered judgment against the bank in favor of the plaintiffs for the original amount of the CDs plus interest.

All parties appeal from the judgment. In Case No. A91A2191, the bank appeals the trial court’s judgment in favor of Stubbs on Counts VI and VII. In Case No. A91A2192, Stubbs cross-appeals against the bank as to the first five counts. The bank appeals the trial court’s judgment in favor of Jones on Counts VI and VII in Case No. A91A2193. Jones cross-appeals against the bank concerning the first five counts in Case No. A91A2194.

Case Nos. A91A2192 and A91A2194

Cases A91A2192 and A91A2194 are virtually identical and will be analyzed together.

1. Plaintiffs argue the trial court erred in granting the bank summary judgment on their fraud claims because issues of material fact remain for determination by a jury. “In order to prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. . . . The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him.” (Citations and punctuation omitted.) Collier v. Evans, 199 Ga. App. 763, 766 (5) (406 SE2d 90) (1991). The trial court correctly concluded plaintiffs failed to meet their burden of rebutting defendant’s prima facie showing that plaintiff’s fraud claims must fail.

To establish a claim for fraud and deceit in Georgia, a plaintiff must show: “(1) false representation made by the defendant; (2) sci-enter; (3) an [indention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; and (5) damage[s].” (Citations and punctuation omitted.) Webb v. Rushing, 194 Ga. App. 732, 734 (3) (391 SE2d 709) (1990).

The bases of plaintiffs’ fraud claims are: (1) Snow misrepresented the manner in which the bank would use the CDs, i.e, using them to collateralize a loan rather than a line of credit for Macon Auto; (2) Snow endorsed this investment opportunity to plaintiffs in telephone conversations even though he knew about Macon Auto’s financial difficulties; and, (3) Snow purposefully failed to send plaintiffs a copy of the note evidencing Macon Auto’s loan when he sent the doctors copies of the other loan documents. Pretermitting the question of whether plaintiffs submitted sufficient evidence to establish the other elements of fraud, a review of the records reveals plaintiffs cannot establish that they justifiably relied upon any of the representations set forth above. “ ‘While questions of due diligence often must be resolved by the trier of fact, that is not always the case. One may fail to exercise due diligence as a matter of law.’ [Cit.]” Citizens Bank of Ball Ground v. Johnson, 191 Ga. App. 155, 158 (1) (381 SE2d 121) (1989).

With regard to plaintiffs’ claim that the bank fraudulently extended a loan to Macon Auto rather than advancing a line of credit, the records contain Snow’s letters to plaintiffs written immediately after the bank loaned $150,000 to Macon Auto, which reference the loan. Although Dr. Stubbs denies receipt of his letter, Dr. Jones, who plaintiffs acknowledge acted on behalf of both doctors in the early stages of this investment, acknowledges receipt and review of his letter. Thus, plaintiffs cannot complain that the bank failed to disclose to them that a loan was made to Macon Auto. Because both doctors testified that they understood the difference between a line of credit and a standard loan, the use of the word “loan” in Snow’s letter should have alerted them that their funds were being used to collateralize a different type of credit transaction than they intended.

With regard to plaintiffs’ claim that Snow’s failure to send them a copy of Macon Auto’s note constituted fraud, Snow testified that he did not send a copy of the note to plaintiffs because they were not parties to that document. Snow only sent plaintiffs copies of the documentation concerning their agreement to collateralize the loan. Moreover, Dr. Jones testified that after he did not receive a copy of the “loan document,” he orally requested a copy of the note from Snow on at least two occasions, but Snow did not send it to him. Pretermitting the questions of whether confidentiality or the lack of a confidential or fiduciary relationship would have negated any duty of the bank to disclose the note to plaintiffs, if plaintiffs believed that a review of that document was important, they could have easily received a copy of the note from Brown, who had agreed to make Macon Auto’s financial records available to plaintiffs. Dr. Jones acknowledges he never requested a copy of the note from anyone at Macon Auto. Dr. Stubbs made no attempt to procure the document from either the bank or Macon Auto. Plaintiffs may not now complain of fraud when the document they contend was concealed from them could easily have been obtained through the exercise of ordinary diligence and prudence.

With regard to plaintiffs’ claim they were misled because Snow endorsed the venture they were considering, we hold this claim is governed by our decisions in Citizens Bank of Ball Ground v. Johnson, supra, and Scott v. Fulton Nat. Bank, 92 Ga. App. 741 (89 SE2d 892) (1955). In Johnson, rather than conducting an independent investigation, the plaintiff simply relied upon a letter issued by the defendant bank to gauge the financial resources of the person to whom he sought to sell his car dealership. We held that the plaintiff failed to exercise due diligence as a matter of law. Johnson, supra at (1). In Scott, the plaintiff, following the advice of a banker, decided to invest $10,000 in a company which went bankrupt shortly thereafter. We held “[s]o far as the petition discloses this information was given gratuitously and no relationship existed which would entitle the plaintiff to rely upon the representations made by the defendant’s agent; therefore the plaintiff was under the duty to prosecute his own inquiries in order to ascertain the true financial condition of [the company].” Scott, supra at 744.

In this case, plaintiffs only attempt to investigate the investment opportunity before they pledged their CDs was to request and examine Brown’s personal financial statements. Plaintiffs did not request or receive any information about Macon Auto, the corporation with which they contracted. Even after they pledged their certificates, plaintiffs made no attempt to monitor the activities of Macon Auto, even though Macon Auto agreed to make its financial records available to plaintiffs in the agreements entered into by the parties. The plaintiffs were introduced to Brown through a patient of Dr. Jones. The evidence reveals that no one associated with the bank discussed Macon Auto with the plaintiffs until after either Brown or the doctors told the bank the doctors were willing to pledge their CDs for Macon Auto’s benefit. The plaintiffs had no prior experience or banking relationship with the bank and neither of them sought financial advice or direction from the bank. Thus, there was no reason for the plaintiffs to rely on Snow’s gratuitous recommendation of Brown or Macon Auto. The trial court correctly directed a verdict for the bank on plaintiffs’ fraud claims.

2. In Count II of their complaints, plaintiffs allege that because the bank failed to disclose certain information to the doctors concerning the financial difficulties of Brown and the businesses in which he was involved, the bank is guilty of constructive fraud. “Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.” OCGA § 23-2-51. It is undisputed, as discussed above, that plaintiffs made no inquiries to the bank about Brown or any of his businesses, including Macon Auto. Plaintiffs do not cite to any cases in this state in which a legal or equitable duty has been recognized under similar circumstances, nor are we aware of any. Cf. Big Bend Agri-Svcs. v. Bank of Meigs, 174 Ga. App. 493 (1) (330 SE2d 422) (1985); Curtis v. First Nat. Bank, 158 Ga. App. 379 (1) (280 SE2d 404) (1981); Limoli v. First Ga. Bank, 147 Ga. App. 755, 758 (250 SE2d 155) (1978). The bank had no duty to make gratuitous revelations to plaintiffs concerning Brown or any of his businesses. This enumeration of error is without merit.

3. Plaintiffs next argue the trial court erred by refusing to find the bank breached its duty of good faith in obtaining their pledges of the CDs. “ ‘Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.’ [Cits.]” Brack v. Brownlee, 246 Ga. 818, 820 (273 SE2d 390) (1980). Plaintiffs make no allegations that the bank did not act in good faith in the performance and enforcement of terms contained in the pledges of the plaintiffs’ CDs, rather plaintiffs’ bases for this claim are the same as for their fraud claims. For the reasons set forth in Divisions 1 and 2, supra, this enumeration must fail.

4. Plaintiffs next contend the trial court erroneously granted the bank summary judgment on their claims for attorney fees pursuant to OCGA § 13-6-11. That statute provides “[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith in making the contract, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” As discussed, supra, the trial court correctly concluded the bank is entitled to judgment as a matter of law on the fraud claims filed by plaintiffs. There are no other allegations which would justify the imposition of attorney fees in this case. The trial court properly granted the bank summary judgment on this claim.

5. Plaintiffs assert the trial court erred in granting the bank summary judgment on their claims for punitive damages pursuant to OCGA § 51-12-5. Plaintiffs concede, however, that punitive damages may not be awarded in pure contractual cases, and their punitive damages claims must fail if we affirm the trial court’s grant of summary judgment to the bank on the claims for fraud, constructive fraud, and breach of good faith. Because we have affirmed the trial court’s ruling on the claims, this enumeration of error is without merit.

Case Nos. A91A2191 and A91A2193

In Case No. A91A2191, the bank appeals the trial court’s judgment to Stubbs on Counts VI and VII of the second amended complaint. In Case No. A91A2193, the bank appeals the trial court’s grant of judgment to Jones on the same claims. The trial court held that Jones’ transmittal letter dated September 19, 1985, in which he referred to “collateralizing] a line of credit” for Macon Auto constituted a counteroffer from both doctors. Although the court stated there remained an issue of fact concerning whether the bank accepted the terms of the counteroffer, it found that was not a material fact because if the counteroffer had not been accepted, there existed no agreement between the parties. If the counteroffer had been accepted the bank breached its agreement with plaintiffs by failing to provide a limited line of credit to Macon Auto. We do not agree and hold that the bank is entitled to judgment on Counts VI and VII of plaintiffs’ second amended complaints as a matter of law.

On September 4, 1985, both plaintiffs signed an agreement with the bank titled “Owners Consent to Pledge of Collateral.” This document set forth the understanding of the parties concerning the manner in which the CDs pledged by the plaintiffs could be used for Macon Auto’s benefit. Specifically, plaintiffs agreed “that said collateral shall secure and that a security interest in said collateral shall exist and will continue to exist in Bank’s favor as security for, any and all indebtedness, obligations or liabilities of every kind and nature of [Macon Auto] . . . howsoever evidenced, whether now existing or hereafter arising . . . .” (Emphasis supplied.) Clearly, this language encompasses the loan extended by the bank to Macon Auto. We hold that this document evidences a complete, unambiguous agreement between plaintiffs and the bank. “There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. [Cits.] This rule has particular force when the party is well educated and laboring under no disabilities.” Berman v. Rubin, 138 Ga. App. 849, 854 (227 SE2d 802) (1976). Plaintiffs acknowledge they either read or had full opportunity to read the terms and conditions contained in the document. Plaintiffs are well educated and do not claim they did not understand the language contained in the pledge of collateral.

Decided March 10, 1992

Reconsiderations denied March 25, 1992

Jones, Cork & Miller, Hubert C. Lovein, Jr., Howard J. Strickland, Jr., for appellant.

Arnall, Golden & Gregory, Jerome L. Kaplan, Ronald C. Thomason, Henry Angel, for appellees.

Furthermore, the parol evidence rule, which prohibits the admission of parol contemporaneous evidence to vary or contradict the terms of a valid written instrument, forbids consideration of Dr. Jones’ letter dated September 19, 1985, transmitting inter alia the Owners Consent to Pledge of Collateral. “[P]arol evidence is neither admissible nor probative if the agreement is otherwise clear and unambiguous. [Cit.]” Dennisson v. Lakeway Publishers, 196 Ga. App. 85, 86 (2) (395 SE2d 366) (1990); Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511, 513 (2) (398 SE2d 749) (1990). The agreement of the parties contained in the Owners Consent to Pledge of Collateral is unambiguous and there was no reason to go outside that document to ascertain the agreement between the parties. For these reasons, the trial court should have granted summary judgment to the bank on these claims.

Judgments affirmed in Case Nos. A91A2192 and A91A2194. Judgments reversed in Case Nos. A91A2191 and A91A2193.

Sognier, C. J., and Cooper, J., concur. Birdsong, P. J., disqualified.


text:
    A92A0092.
    SMITH v. WINN-DIXIE ATLANTA, INC.
    (417 SE2d 202)
   Sognier, Chief Judge.

Lenora Smith brought suit against Winn-Dixie Atlanta, Inc. to recover damages for injuries she incurred when she slipped and fell at a Winn-Dixie store. The trial court granted Winn-Dixie’s motion for summary judgment, and Smith appeals.

The record reveals that after paying for her groceries, appellant was pushing a grocery cart from the checkout counter to the door when she slipped and fell. At her deposition, appellant testified that although she had not noticed anything on the floor before she fell, after falling she observed “a clear liquid” puddle approximately ten inches in diameter and “a little pack of plastic from the handle that comes from inside of the shopping bags” on the floor near the place where the fall occurred. Appellant opined that she slipped on these items. By affidavit, Douglas Harvey, then the store’s junior assistant manager, averred that his responsibilities included visually inspecting the floor in the front area of the store, and that he had done so ten to fifteen minutes prior to the time appellant stated she fell and had found the floor to be “clean, dry[,] and free of any foreign substance.”

Appellant contends the trial court erred by granting summary judgment to appellee because genuine issues of fact remain for jury determination. We do not agree. While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). In this case, no contention is made that appellee had actual knowledge of the liquid and plastic appellant said she observed on the floor. When an action is based on constructive knowledge, to avoid summary judgment for the defendant, the plaintiff must establish a question of fact whether the foreign substance remained on the floor for a sufficient length of time for knowledge of it to be imputed to the proprietor, showing that he had an opportunity to discover the defect and correct it. Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991). This may be done by showing that employees of the proprietor were in the area and easily could have seen the hazard and corrected it, or by showing that the proprietor failed in his duty to exercise ordinary care in inspecting the premises to keep them safe. Queen v. Kroger Co., 191 Ga. App. 249-250 (1) (381 SE2d 413) (1989).

Here, appellant showed neither in response to appellee’s motion for summary judgment. Although appellant now argues that the cashier who waited on her and several other cashiers were in the immediate area where she fell and thus could have seen the puddle and the plastic and removed them, at her deposition appellant testified twice in response to direct questions that she saw no store employees in the immediate vicinity where she fell. Harvey’s affidavit testimony established appellee’s exercise of due care in inspecting the premises because “[w]here it appears a foreign object had ‘not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.’ [Cit.]” Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987). Accordingly, appellant has failed to show any evidence raising a fact question regarding appellee’s constructive knowledge of any foreign substance on the floor. Consequently, as appellee pierced this essential element of appellant’s complaint, the trial court did not err by granting summary judgment to appellee. Queen, supra at 251 (4).

Decided March 12, 1992

Reconsideration denied March 25, 1992

Kenneth J. Rajotte, for appellant.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A92A0154.
    JONES v. PARRISH.
    (417 SE2d 210)
   McMurray, Presiding Judge.

Plaintiff Barry Lee Jones brought suit against Charlie Parrish, d/b/a Charlie’s One Stop, seeking damages for malicious prosecution. The case proceeded to trial and, at the close of plaintiff’s evidence, defendant moved for a directed verdict. The trial court granted defendant’s motion for a directed verdict and dismissed the case. Plaintiff appeals.

Viewing the evidence in the light most favorable to plaintiff, the party opposing the motion for a directed verdict, see Burney v. Butler, 243 Ga. 620 (1) (255 SE2d 686), we find the following: Searching for some sour cream and onion potato chips, plaintiff drove his father’s pickup truck to defendant’s convenience store. A man, subsequently identified as Randy Crowder, entered the store ahead of plaintiff. Plaintiff had never seen Crowder previously.

As plaintiff approached the front door, Crowder turned around and moved toward plaintiff, who put his hands in the air. Crowder grabbed plaintiff’s coat and pulled it over his head. Then Crowder threw plaintiff to the ground and started hitting him.

Plaintiff rolled to his father’s pickup truck and managed to pull himself up. He reached into the bed of the truck, picked up a baseball bat (his father had been a Little League baseball coach) and told Crowder to leave him alone. Crowder left, heading back toward the convenience store.

Scared and unsure of what happened to Crowder, plaintiff took the baseball bat into the store and asked someone to call the police. He was told that the police had been called already. Just as plaintiff turned around, he found himself standing “nose to nose” with Crowder who wrapped him in a “bear hug” and dragged him down the center aisle of the store. As plaintiff struggled to get free, Crowder bit off plaintiff’s left ear — plaintiff fell to the floor and dropped the bat.

Crowder grabbed the bat. He swung at plaintiff and hit him on the nose, shattering it into “210 pieces.” He swung again and hit plaintiff on the right eye. Plaintiff managed to block a third swing with his hand. Then he reached up, grabbed Crowder’s testicles and squeezed with all his might. Crowder retreated and plaintiff crawled toward a storage room to get away.

The police arrived and found plaintiff bleeding profusely in the storage room. Crowder was leaning against a counter, “halfway sitting and standing.” His eyes were as big as “golf balls” and he appeared to be “strung out” on drugs. Holding the bat, he screamed at the officers in what seemed like a foreign language.

One of the officers yelled at Crowder to throw down the bat. Crowder threw the bat down and the officer kicked it away. Then Crowder charged the officer and shoved him against a stack of food. Grappling with each other, the two men fell against and broke a “soda” dispensing machine. They also knocked over a beer display, spilling beer “everywhere.” Finally, the officer managed to put a “full Nelson” on Crowder and, with the help of additional officers who had arrived at the store, Crowder was subdued and arrested.

Plaintiff was put in an ambulance and taken to the hospital. He received “114 stitches” in his ear; he underwent surgery to put his nose back together.

In the meantime, defendant arrived at his store and began cleaning it up. He had “no idea” who damaged his store so he asked his clerk what had happened. He was told that there had been a fight between Crowder and plaintiff and that plaintiff entered the store with a baseball bat. He made no further inquiries. He did not ask the police who was to blame for the damage. He did not seek a police report of the incident (although a report was available to the public the very next day). Nevertheless, five days later, defendant sought an arrest warrant for plaintiff, deposing that plaintiff “intentionally” damaged defendant’s property in an amount exceeding $500.

Actually, defendant’s property was not damaged at all until the police arrived. No damage was inflicted on defendant’s property during plaintiff’s fight with Crowder. It was not until the police fought with Crowder that defendant’s property was damaged.

Plaintiff was arrested and charged with criminal damage to property, felony grade. He retained and paid a lawyer to represent him. Ultimately, the case was dismissed for want of prosecution and plaintiff brought this malicious prosecution case against defendant. Held:

1. Plaintiff contends the trial court erred in granting defendant’s motion for a directed verdict. We agree.

“ ‘ “In actions for malicious prosecution, the question is, not whether the plaintiff . . . was guilty, but whether the defendant . . . had reasonable cause to so believe — whether the circumstances were such as to create in the mind of the defendant a reasonable belief that there was probable cause for the prosecution. (Cit.) Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was prosecuted.” ’ Tanner-Brice Co. v. Barrs, 55 Ga. App. 453 (2) (190 SE 676) (1937). ‘While (probable cause) need not approach absolute certainty as to the facts, and it is not inconsistent with a considerable element of doubt, it must be more than mere conjecture or unfounded suspicion. Beyond this, the belief must be supported by appearances known to the defendant at the time, and a prosecution instituted without probable cause cannot be justified by anything, short of guilt in fact, which comes to the knowledge of the defendant later. . . . The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. All such factors as the reliability of the source, the availability of further information and the difficulty of obtaining it, the reputation of the accused, and his opportunity to offer an explanation, and the apparent necessity of prompt action, are to be considered in determining whether it was reasonable to act without verification.’ Prosser, [Law of Torts § 119 (4th ed. 1971)] at 842.” (Emphasis supplied.) Melton v. LaCalamito, 158 Ga. App. 820, 823, 824 (282 SE2d 393).

Were the facts known to defendant sufficient to lead a reasonable man to believe that plaintiff criminally damaged defendant’s property? We think not. Defendant simply knew that plaintiff entered his store with a baseball bat and that a fight ensued between plaintiff and Crowder. After gleaning those sparse facts, defendant waited five days before he initiated the prosecution against plaintiff. During that period of time, defendant made no attempt to ascertain the full facts about plaintiff’s confrontation with Crowder. He did not ask detailed questions about the confrontation: He did not ask the police what happened; he did not obtain a copy of the police report. Instead, satisfied with the “broad strokes” painted by his clerk, defendant had plaintiff arrested and prosecuted. Given these facts, a jury question exists as to whether defendant should have investigated further before he criminally prosecuted plaintiff. Melton v. LaCalamito, 158 Ga. App. 820, 823, 824, supra. See also Colonial Stores v. Fishel, 160 Ga. App. 739, 740, 741 (288 SE2d 21) (reasonable man may be liable for his failure to conduct investigation before initiating criminal prosecution). The trial court erred in ruling otherwise.

We cannot accept defendant’s contention that plaintiff failed to present evidence of malice. “Although a jury cannot infer a lack of probable cause from malice (American Plan Corp. v. Beckham, 125 Ga. App. 416 (4) (188 SE2d 151)), a jury is authorized to infer malice from a lack of probable cause. [Cits.]

“As we held [above] that the evidence authorized the jury to conclude that probable cause was lacking, it was within the province of the jury to infer malice from the lack of probable cause. [Cit.]” Kviten v. Nash, 150 Ga. App. 589, 591, 592 (258 SE2d 271). See also Medoc Corp. v. Keel, 166 Ga. App. 615 (305 SE2d 134); Great Atlantic &c. Tea Co. v. Burgess, 157 Ga. App. 632 (278 SE2d 174).

2. When he learned that defendant obtained a warrant for his arrest, plaintiff telephoned defendant and asked him to drop the charge which had been brought against him. According to plaintiff, defendant replied that he had to prosecute plaintiff in order to collect insurance proceeds and that he could not, therefore, drop the charge. Ruling upon a motion in limine filed by defendant, the trial court declared this evidence inadmissible because it injected “insurance” into the case. Plaintiff assigns error upon that ruling,' urging us to find the evidence admissible because it tended to prove “malice” on the part of defendant.

“The fact that a defendant has liability insurance or is otherwise indemnified against loss cannot be shown as an independent fact, although it may be shown where it is incident to the proof of some other fact properly involved in the lawsuit. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 383, (277 SE2d 753) (1981); Goldstein v. Johnson, 64 Ga. App. 31, 35 (12 SE2d 92) (1940). ‘ “A party to a lawsuit has a right to bring forth all relevant material and competent facts. Although such . . . facts include the suggestion that one party carries insurance, the rule is not changed. Error arises only when a party intentionally brings before the jury on an immaterial or irrelevant matter the fact that the opposite party carries insurance.” ’ Wade v. Drinkard, 76 Ga. App. 159, 165 (45 SE2d 231) (1947).” U-Haul Co. of Western Ga. v. Ford, 171 Ga. App. 744 (1) (320 SE2d 868).

Decided March 13, 1992

Reconsideration denied March 25, 1992.

Williams & Sammons, Angela W. Sammons, Walter G. Sammons, Jr., for appellant.

Jones, Cork & Miller, Jerry A. Lumley, Kelly M. McDonald, for appellee.

In our view, plaintiff should have been permitted to testify that defendant was prosecuting plaintiff to collect insurance proceeds covering the damage to defendant’s property. The evidence was relevant to the issue of malice; it was not outweighed by possible prejudice to defendant. See Petway v. McLeod, 47 Ga. App. 647 (3) (171 SE 225).

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0318.
    BOLIN v. MASSACHUSETTS INDEMNITY & LIFE INSURANCE COMPANY et al.
    (417 SE2d 325)
   McMurray, Presiding Judge.

Appellant brought suit against Massachusetts Indemnity & Life Insurance Company (“MILICO”), A. L. Williams Insurance Services, Inc. (“Williams”), James Belser, Jr., and “John Doe individuals” in the Superior Court of Gwinnett County. The complaint was couched in four counts. In Count 1, appellant sought damages in the amount of $200,000 against appellee MILICO for breach of an insurance contract which MILICO issued to insure the life of appellant’s husband, Darryl S. Bolin. In Count 2, appellant asserted that appellees fraudulently induced Darryl S. Bolin “to enter into life insurance contracts and prepaid investment schemes for himself, his wife, and child . . .” In this connection, appellant alleged that appellees led Darryl S. Bolin to believe that false answers on the application for insurance would be immaterial. In Count 3, appellant sought damages for “conspiracy to defraud,” alleging appellees conspired to deprive appellant of insurance proceeds after fraudulently inducing Darryl S. Bolin to take out a life insurance policy with MILICO. Finally, in Count 4, appellant alleged that the actions of appellees were “extreme and outrageous” and were tantamount to intentional infliction of emotional distress. Appellees answered the complaint and denied any liability to appellant. Appellant subsequently dismissed the complaint, pursuant to OCGA § 9-11-41 (a), without prejudice.

Thereafter, appellees filed suit against appellant and appellant’s attorneys seeking an award of attorney fees and expenses of litigation pursuant to OCGA § 9-15-14. Appellant answered and counterclaimed, raising the same allegations which she set forth in the original complaint. With that, the trial court entered an order realigning the parties pursuant to OCGA § 9-11-21 and recaptioning the suit filed by appellees. Pursuant to the realignment order, appellant was designated as the plaintiff, appellees were designated as the defendants and plaintiffs-in-counterclaim, and appellant and appellant’s attorneys were designated as defendants-in-counterclaim.

Briefly stated, the evidence adduced below demonstrates the following: In addition to being a part-time insurance agent for “A. L. Williams & Associates,” appellee Belser was a manager at Nationwide Warehouse & Storage (“Nationwide”). Appellant’s husband, Darryl S. Bolin, was an employee of Nationwide and he became interested in purchasing a life insurance policy. Appellee Belser met with appellant’s husband at Nationwide to fill out an application for life insurance with MILICO. Appellee Belser asked appellant’s husband the questions on the application and recorded the answers. Later, appellant joined her husband at Nationwide. She signed the application on her husband’s behalf. Although she had an opportunity to read the application and the answers recorded thereon, she did not do so.

The application provided that the answers provided by appellant’s husband “shall constitute the application and shall form the basis of any contract of insurance that may be issued. . . .’’It also provided that “no agent of the Company nor any broker is authorized to make or modify contracts or waive any of the Company’s rights or requirements.”

Several answers recorded on the application were false. Appellant’s husband was asked (1) if he had been treated for alcoholism or drug abuse within the previous ten years; (2) if he had been convicted of two or more moving violations or if his driver’s license had been suspended or revoked within the previous three years; (3) if he used tobacco within the previous 12 months. These questions were answered “No.” (Moreover, appellant signed a separate “Non-smoking Statement” on her husband’s behalf which read: “I hereby state that I have not smoked cigarettes in the last 12 months.”) In fact, within the relevant time periods, appellant’s husband had been treated for alcohol and drug abuse, had been convicted of two “D.U.I.” violations, had had his license revoked, and had smoked (and continued to smoke) cigarettes.

Appellee Belser deposed that he never saw appellant’s husband smoke or drink and he did not know that the answers supplied by appellant’s husband were false. Appellant deposed that appellee Belser knew her husband smoked and that his license had been revoked. Other Nationwide employees deposed that appellant’s husband smoked cigarettes at Nationwide and that it was “common knowledge” that his license had been revoked.

Relying upon the answers set forth on the application, MILICO issued a life insurance policy covering the life of appellant’s husband. Appellant’s husband died not long after the policy was issued and appellant submitted a claim to MILICO. MILICO denied appellant’s claim and tendered the premiums that had been paid on the policy to appellant.

Following discovery, appellee Belser moved to dismiss appellant’s claims and appellees MILICO and Williams moved for summary judgment. In support of its motion for summary judgment MILICO submitted the affidavit of one of its officers who deposed that if appellant’s husband had revealed the true facts about his medical history, personal habits and driving record, MILICO in good faith would not have issued him a life insurance policy. The trial court granted appellees’ motions and this appeal followed. Held:

1. Pursuant to a motion to compel discovery, appellant sought an order requiring appellees to produce various documents and attend the deposition of a non-party witness. The trial court granted the motions for summary judgment and motion to dismiss without ruling upon appellant’s motion to compel. In her first enumeration of error, appellant contends the trial court should have ruled on the motion to compel before granting the appellees’ motions. We can discern no harmful error. The deposition or documents sought by appellant would not have added anything of substance to appellant’s claim. Tuck v. Marriott Corp., 187 Ga. App. 567, 569 (2) (370 SE2d 795); Motz v. Landmark &c. Bank of Fort Lauderdale, 154 Ga. App. 858, 860 (4) (270 SE2d 81).

2. In her second enumeration of error, appellant contends the trial court erred in granting appellee MILICO’s motion for summary judgment. In this connection, appellant asserts a genuine issue of material fact exists as to whether MILICO in good faith would either not have issued the policy or would not have issued the policy at the premium rate if the true facts had been known. We disagree.

“ ‘Ordinarily it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court.’ United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 236 (248 SE2d 635) (1978). See also Jefferson Standard Life Ins. Co. v. Henderson, 37 Ga. App. 704 (141 SE 498) (1928). We have examined the record and, contrary to appellant’s assertions, find no conflicting evidence sufficient to create an issue for the jury in this case. Where the evidence shows that the insurer would not have issued the policy if it had been aware of the applicant’s extensive history of medical [and non-medical] problems, the evidence demands a finding that the omissions or misrepresentations of the applicant were material to the acceptance of the risk. Oakes v. Blue Cross &c. of Columbus, 170 Ga. App. 335 (1) (317 SE2d 315) (1984). Because the evidence demands a finding that misrepresentations were made on the application of insurance which were material as a matter of law, recovery under the policy is precluded. See Jefferson Standard Life Ins. Co. v. Bridges, 147 Ga. App. 5 (248 SE2d 5) (1978).” Smith v. Integon Life Ins. Corp., 195 Ga. App. 481 (393 SE2d 741). The mere fact that appellee Belser may have known that the answers supplied by appellant’s husband were false is of no consequence since the application expressly limited the authority of the agent taking it. National Accident &c. Ins. Co. v. Davis, 50 Ga. App. 391 (178 SE 320).

3. “To recover in tort for fraud, the plaintiff must prove five essential elements: (1) that the defendant made representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; and (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made. [Cits.]” Bacote v. Wyckoff, 251 Ga. 862, 865 (310 SE2d 520). In the case sub judice, appellant could not point to any representation made by appellee Belser which induced appellant’s husband to answer the application falsely. It follows that the trial court did not err in dismissing the fraud count (Count 2) of the complaint and that the third enumeration of error is without merit.

Assuming, arguendo, that appellee Belser did make a misrepresentation concerning the false answers and that appellant and appellant’s husband justifiably relied upon the misrepresentation, we would conclude, nonetheless, that the fraud count of the complaint was properly dismissed. “[W]e have found no authority indicating an applicant may recover from the agent for fraud in making material misrepresentations for the purpose of inducing an insurer to provide coverage which the applicant could not otherwise obtain.” James, Hereford & McClelland, Inc. v. Powell, 198 Ga. App. 604, 606 (402 SE2d 348).

4. In her fourth enumeration of error, appellant contends the trial court erred in granting appellee Williams’ motion for summary judgment. We disagree.

The liability of appellee Williams was predicated solely on the theory of vicarious liability. Since appellant cannot recover against appellee Belser, see Division 3, she cannot recover against appellee Williams. See Roadway Express v. McBroom, 61 Ga. App. 223 (6 SE2d 460). It follows that the trial court did not err in granting appellee Williams’ motion for summary judgment.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided March 11, 1992

Reconsideration denied March 25, 1992

Novy & Jaymes, Eugene Novy, Deborah M. Vaughan, for appellant.

Booth, Wade & Campbell, Douglas N. Campbell, Nancy S. Parker, for appellees.


text:
    A92A0444.
    THE STATE v. NORRINGTON.
    (417 SE2d 203)
   McMurray, Presiding Judge.

Defendant Norrington is charged by indictment with the offense of having cocaine under his control in violation of the Georgia Controlled Substances Act. The State appeals the grant of defendant’s motion to suppress evidence, the residue of cocaine found on a crack pipe in defendant’s possession. Held:

Two deputy sheriffs traveled in a marked patrol car to an area known for the buying and selling of drugs. One of the deputies saw defendant sitting alone, approached defendant, and engaged in conversation with him, explaining who he was and why he was there. The deputy, assigned to the Night Hawk Unit established to combat the street sale of illegal drugs, was dressed in a black uniform with sheriff’s emblems on the sleeves, a badge on the chest, “Sheriff’s Department” was written in large letters across the back of the uniform, and the deputy had on his “web gear” supporting his weapons and other equipment.

After asking defendant and being told that defendant lived elsewhere, was visiting a friend, and that the friend was not present at that time, the deputy asked defendant to consent to a search of his person for drugs. Defendant responded that he did not mind the deputy searching him and stood up so that the deputy could search him. During the ensuing search of defendant the deputy reached into defendant’s “left rear pants pocket and removed a metal tube approximately three to four inches in length, brown in color, with a small piece of rubber hose located on one end and then the other end was impacted with what appeared to be steel wool with a greyish ash color on the steel wool with a black pitch around the tip of it.” The deputy, recognizing that the device was a crack pipe or stem and knowing that possession of such devices is a criminal offense and that the devices sometimes retain a residue of cocaine, arrested defendant.

Defendant acknowledged that he consented to the search of his person and that the deputy did not threaten or coerce him in any way. However, defendant also testified that at the time of the incident he did not know that he had the right to deny the request for consent for the search. The deputy did not inform defendant of his right to deny consent for the search. There was no evidence that the deputy had probable cause to search defendant, nor any evidence that the deputy had a reasonable basis for an articulable suspicion such as would authorize a “pat-down” of defendant for the deputy’s protection.

Decided March 12, 1992

Reconsideration denied March 25, 1992

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

Where the State seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was freely and voluntarily given. Garcia v. State, 195 Ga. App. 635, 636 (1) (394 SE2d 542); Hunter v. State, 190 Ga. App. 52, 53 (378 SE2d 338). Voluntariness of consent is a factual determination to be made from a consideration of the totality of the circumstances. Walton v. State, 194 Ga. App. 490, 491 (2), 492 (390 SE2d 896); Miller v. State, 194 Ga. App. 338 (1) (390 SE2d 291). “A trial court’s decision of questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428).” Garcia v. State, 195 Ga. App. 635, 636 (1), 637, supra.

The colloquy at the hearing on defendant’s motion to suppress indicates that the superior court determined that the State had not satisfied its burden of proving that the consent was freely and voluntarily given. In looking at the totality of the circumstances so as to determine the voluntariness of the consent, the superior court may consider such “factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. [Cit.]” Dean v. State, 250 Ga. 77, 80 (295 SE2d 306). Therefore, the superior court was authorized to consider the absence of any attempt by the deputy to advise defendant of his constitutional rights along with defendant’s testimony that he did not believe that he had any right to refuse to consent to the search and determine that the State had failed to satisfy its burden of showing that the consent to search was, in fact, freely and voluntarily given.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Melnick, Moore & Elliott, Larry M. Melnick, for appellee.


text:
    A92A0531.
    ATLANTA RENT-A-CAR, INC. v. SOUTHERN GENERAL INSURANCE COMPANY.
    (417 SE2d 213)
   McMurray, Presiding Judge.

On July 7, 1986, Shirley Pullins and Mario 0. Hill were involved in an automobile collision. Ms. Pullins was driving an automobile owned by Charles White and insured by Southern General Insurance Company (“Southern General”). Mr. White gave Ms. Pullins permission to drive his automobile. Mr. Hill was driving an automobile owned by Atlanta Rent-A-Car, Inc. (“Atlanta Rent-A-Car”) and rented to David Stanford McCoy. At the time of the collision, Mr. McCoy was a passenger in the automobile driven by Mr. Hill.

Atlanta Rent-A-Car did not require persons renting its automobiles to carry liability insurance. It did, however, file a plan of self-insurance covering its vehicles with the Insurance Commissioner’s office.

Ms. Pullins brought suit against Messrs. Hill and McCoy. Southern General, as Mr. White’s uninsured motorist carrier, was served with a copy of the summons and complaint. Messrs. Hill and McCoy were served by publication only.

Southern General settled Ms. Pullins’ suit, under the uninsured motorist endorsement of its policy with Mr. White, for the policy limits of $15,000. Thereafter, Southern General brought suit against Atlanta Rent-A-Car seeking “that sum paid by Southern General ($15,000.00) in good faith settlement to Shirley Pullins arising out of her claims against Mario O. Hill and David S. McCoy.” Atlanta Rent-A-Car answered the complaint and denied any liability to Southern General.

Each side moved for summary judgment. The trial court granted Southern General’s motion, entering judgment in favor of Southern General in the amount of $15,000 plus pre-judgment interest in the amount of $4,211.53. Atlanta Rent-A-Car appealed. Held-.

In Veal v. Gen. Acc. &c. Assur. Corp., 128 Ga. App. 610, 611 (197 SE2d 410), plaintiff brought suit against Zebbie Williams seeking to recover damages arising out of an automobile collision. Although service was attempted by publication, plaintiff obtained a judgment against Williams. Thereafter, plaintiff brought suit against the insurance company, claiming it insured Williams under the terms of an automobile insurance policy. The insurance company moved for summary judgment. The motion was granted and this Court affirmed, holding: “There is no provision in this state whereby courts may acquire jurisdiction over a defendant by service by publication and then render an in personam judgment against him. [Cit.] Consequently, the judgment which plaintiff seeks to enforce against the insurer was void.”

Decided March 13, 1992

Reconsideration denied March 25, 1992

Trauner, Cohen & Thomas, Russell S. Thomas, for appellant.

Freeman & Hawkins, Edward M. Newsom, for appellee.

We find Veal to be applicable in this case. Southern General is subrogated to Ms. Pullins’ rights. It can, therefore, proceed against the tortfeasor and the tortfeasor’s insurer, Atlanta Rent-A-Car; but it must, of course, obtain an in. personam judgment against the tortfeasor before seeking to enforce the judgment against the tortfeasor’s insurer, Atlanta Rent-A-Car. Veal v. Gen. &c. Corp., 128 Ga. App. 610, supra. See also Norman v. Daniels, 142 Ga. App. 456, 458 (236 SE2d 121) (although insurer is subrogated to plaintiff’s rights, plaintiff has not obtained judgment against tortfeasor via John Doe action). Since an in personam judgment has not been entered against Mr. Hill or Mr. McCoy, Atlanta Rent-A-Car cannot be held liable as Mr. Hill’s or Mr. McCoy’s insurer. The trial court erred in ruling otherwise.

Judgment reversed..

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0580.
    THE STATE v. HANCOCK.
    (417 SE2d 381)
   McMurray, Presiding Judge.

Defendant was charged in a multi-count indictment with trafficking in cocaine (Count 1), two counts of violating Georgia’s Controlled Substances Act (possession of cocaine) (Counts 2 and 3) and three counts of recidivism (Counts 4, 5 and 6). Defendant filed a motion to suppress.

Officer Donnie Canada of the Rome Police Department received information from a confidential informant that defendant “was involved in drug trafficking in the Rome-Floyd County area. ...” Late on Friday evening April 12, 1991, Officer Canada overheard defendant tell the confidential informant that he was going to “be at a certain place at a certain time in possession of cocaine.” More specifically, defendant said he would be at “Silver Creek” early the next morning “in possession of cocaine.”

Members of the Rome-Floyd Metro Task Force, Federal Bureau of Investigation Agent Joe McGill and County Police Officer Ray Logan staked-out the designated area at the prescribed time and, after about “an hour or two,” defendant drove up and stopped the car. About eight law enforcement officers with drawn weapons pointed at defendant surrounded the suspect vehicle. Defendant “got out... of the car[. Officer Canada] was on the passenger’s side, and [he] looked over the top of the car, and . . . told [defendant that the officers] were conducting a narcotics investigation and asked his permission to search the car, and [defendant] said ‘Sure, go ahead.’ ” A search of the vehicle revealed no contraband. However, while Officer Canada was searching the car, another officer did a non-consensual “pat-down” search of defendant and discovered two bags of cocaine under defendant’s baseball ca.p.

Decided March 11, 1992

Reconsideration denied March 25, 1992

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Fred R. Simpson, Assistant District Attorneys, for appellant.

Barbara J. Gale, for appellee.

The trial court granted defendant’s motion to suppress, finding that the removal of defendant’s “baseball cap . . . from his head without permission . . . was a violation of [defendant’s] Constitutional rights and an illegal search, and, therefore, the drugs that were allegedly found in his hat, that evidence would be suppressed.” The State appeals. Held:

When coupled with corroboration by the personal observation of a law enforcement officer, a reliable informant’s tip is sufficient to establish probable cause. McKinney v. State, 184 Ga. App. 607, 608 (1) (362 SE2d 65). In the case sub judice, Officer Canada testified that the informant had never given him information before. However, Officer Canada actually heard defendant state that he would be at “Silver Creek” early the next morning with cocaine. Consequently, when Officer Canada and other law enforcement officers observed defendant appear at “Silver Creek” early the next day, probable cause existed for defendant’s arrest. See McKinney v. State, 184 Ga. App. 607, 608 (1), supra. It follows that any search of defendant was lawfully conducted pursuant to a lawful warrantless arrest. Stoker v. State, 153 Ga. App. 871 (1), 872 (267 SE2d 295). The trial court erred in granting defendant’s motion to suppress.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0670.
    BAXLEY v. SUTTER et al.
    (417 SE2d 205)
    Decided March 12, 1992
    Reconsideration denied March 25, 1992.
    Jean T. Baxley, pro se.

      King & Spalding, M. Robert Thornton, R. Christopher Cook, for appellees.
   McMurray, Presiding Judge.

Plaintiff Baxley brought suit against J. Lloyd Sutter, Gearline P. Eley and King & Spalding, in the Superior Court of Fulton County. In pertinent part, the complaint reads as follows:

“This pleading, Complaint, is being filed according with the rules which will enable plaintiff to be assigned a judge who will be able to schedule a hearing between plaintiff and the firm, J. Lloyd Sutter and Gearline Eley, and King & Spalding, attorneys. Mr. Sutter by not meeting with plaintiff, has forced this type of action to occur much to plaintiff’s regret. Said meeting would have enabled plaintiff to present her side of the issues which in her opinion would have balanced the scales of justice by shedding new light on such a final decision which has resulted in multiple costs, losses and damages.....

“Plaintiff at this time requests a hearing. Plaintiff requests the appointment of an attorney should it be necessary after hearing. An Amended Complaint may or may not follow.”

Following the dismissal of the complaint for failure to state a claim upon which relief can be granted, plaintiff appealed. Held:

“ ‘A pro se complaint is not held to stringent standards of formal pleadings, Haines v. Kerner, 404 U. S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (Vinnedge v. Gibbs, 550 F.2d 926 (1) (4th Cir. 1977)), and the “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also J. Moore, 2A Moore’s Federal Practice, ¶ 12.08 at 2265-86 (1972).’ Hughes v. Roth, 371 FSupp. 740, 741 (D.C.Pa. 1974).” Johnson v. Jones, 178 Ga. App. 346, 349 (343 SE2d 403).

Construing the complaint liberally, we conclude that it fails to state a claim for relief. It cannot be said by any stretch of the imagination that the complaint sets forth a “legal basis for recovery.” Poole v. City of Atlanta, 117 Ga. App. 432, 434 (160 SE2d 874). It follows that the trial court did not err in dismissing the complaint.

Judgment affirmed.

Sognier, C. J., and Cooper, J. concur.


author: Carley, Presiding Judge.

text:
    A91A1940.
    WHITE v. LANCE H. HERNDON, INC.
    (417 SE2d 383)
   Carley, Presiding Judge.

Appellee-plaintiff, which does business as “Access, Inc.,” provides computer programming and systems analysis services. It agreed to provide such services to the Atlanta office of National Data Corporation (NDC) and, in furtherance thereof, appellee entered into an “Independent Contractor Agreement” with appellant-defendant. In this agreement, appellant contracted to provide computer services to NDC on behalf of appellee and further covenanted that, for a four-month period after termination of his agreement with appellee, he would not perform any other computer services for NDC on his own behalf. When appellant terminated his agreement with appellee and thereafter allegedly breached his covenant by providing computer services to NDC during the applicable four-month period, appellee filed suit to recover monetary damages and attorney’s fees. The case was tried before a jury and resulted in a verdict in favor of appellee. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. The denials of appellant’s motions for judgment on the pleadings and for summary judgment are moot issues. Litton Indus. Credit Corp. v. Lunceford, 175 Ga. App. 445 (1) (333 SE2d 373) (1985); Dein v. Citizens Jewelry Co., 149 Ga. App. 340, 341 (4) (254 SE2d 403) (1979).

2. As originally filed, the complaint denominated the plaintiff as “Access, Inc.” The trial court did not err in allowing the complaint to be amended so as to denominate appellee as the plaintiff. Block v. Voyager Life Ins. Co., 251 Ga. 162 (1) (303 SE2d 742) (1983); Wilson v. Cunningham, 185 Ga. App. 734 (1) (365 SE2d 534) (1988). Contrary to appellant’s, contentions, the instant contract is enforceable against him, notwithstanding that it was executed by appellee in the name of “Access, Inc.” Freeman v. C. W. Redfern Enterprises, 182 Ga. App. 205, 206 (1) (355 SE2d 79) (1987).

3. Appellant enumerates as error the denial of his motion for a directed verdict. Our consideration of this enumeration is limited to only those grounds which were raised in the trial court. Grabowski v. Radiology Assoc., P.A., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986).

Appellant urged that the covenant is overly broad and unenforceable against him. By its terms, however, appellant agreed that, for a four-month period, he would not engage in the limited activity of performing computer services for only one of appellee’s clients, that single client being the Atlanta office of NDC. Under these circumstances, the covenant is not overly broad and unenforceable. Compare Club Properties v. Atlanta-Offices Perimeter, 180 Ga. App. 352 (348 SE2d 919) (1986).

Contrary to appellant’s contentions, appellee is not relegated to its equitable remedy of injunction, but it is authorized to sue for damages for the breach of the covenant. Reid v. Bryant, 208 Ga. 328 (2) (66 SE2d 826) (1951).

4. At the close of the evidence, the trial court granted appellee’s motion for directed verdict as to appellant’s counterclaim. Appellant does not enumerate this ruling as error. Nevertheless, he does urge that the trial court erred in refusing to submit to the jury the issue of his entitlement to attorney’s fees and expenses of litigation pursuant to OCGA § 13-6-11.

Appellant was not entitled to any recovery under OCGA § 13-6-11 based upon appellee’s alleged “bad faith” in prosecution of the instant action. Attorney’s fees and expenses of litigation pursuant to OCGA § 13-6-11 are “ ‘not available to a defendant in the absence of a “viable independent counterclaim asserting (a) claim for relief independent of the assertion of the (plaintiff’s) harassment, litigiousness and bad faith in bringing . . . suit.” [Cit.]’ ” Vogtle v. Coleman, 259 Ga. 115, 117 (3) (376 SE2d 861) (1989). Since appellant does not contend that his independent counterclaim against appellee was viable, it follows that the trial court correctly refused to submit to the jury the issue of his entitlement to a recovery under OCGA § 13-6-11.

5. At trial, appellant tendered what he denominated as the original of his contract with appellee. This document, which contained blank spaces, was excluded by the trial court on the basis that appellant had not disclosed its existence during discovery. Thereafter, appellee tendered what it denominated as a photocopy of the lost original of its contract with appellant. This document, which contained no blank spaces, was admitted by the trial court.

Appellee’s document was tendered as a photocopy of the original of the contract which had been lost. Appellant did not contend that he did not execute the original, but argued only that the document tendered by appellee reflected alterations insofar as the blanks had been filled in after execution. Under these circumstances, appellee was entitled to have its document admitted pursuant to OCGA § 24-5-21 and appellant was entitled to introduce evidence to show that the document had been altered. Howard Piano Co. v. Glover, 7 Ga. App. 548, 550 (2) (67 SE 277) (1910). It follows that the trial court did not err in admitting appellee’s document.

The trial court did, however, exclude appellant’s document based upon an erroneous ground. When a party proffers at trial evidence which should have been disclosed during discovery, exclusion of the proffered evidence is not an authorized sanction. The proper sanction is to order a postponement or a mistrial. Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 379 (2) (274 SE2d 761) (1980).

Denied March 11, 1992

Reconsideration denied March 26, 1992

Mark T. Sallee, for appellant.

Bauer, Deitch & Raines, Gerald B. Kline, for appellee.

To warrant reversal, however, the trial court’s exclusion of appellant’s document would have to be harmful as well as erroneous. The only apparent difference between appellant’s document which was excluded and appellee’s document which was admitted is that the former contains blank spaces which the latter does not. Appellant’s contention that the blanks in appellee’s document had been filled in only after he had signed the original contract was thoroughly pursued by appellant’s counsel both in the evidentiary phase of the trial and during closing arguments.

While the admission of appellant’s document would undoubtedly have bolstered his contention that the contract that he signed contained blanks which were subsequently filled in by appellee, it does not appear that his contention would have any bearing on appellant’s ultimate liability in the instant case. It was otherwise undisputed that the contract that appellant did sign contained a provision that, for a four-month period after termination of his agreement with appellee to provide computer services for NDC, he would not perform computer services for NDC in his own behalf. It was further undisputed that, after undertaking performance of his agreement with appellee, appellant elected to terminate that agreement and, without waiting four months, he began to perform computer services for NDC. Since it would appear that the purported additions to the contract allegedly made by appellee after appellant’s signature have no material bearing on the enforceability of appellant’s covenant and his liability for the breach thereof, any error in the exclusion of appellant’s document was harmless. “[BJefore an alteration in a written instrument will vitiate the whole instrument, three things must appear: The alteration must be material, it must have been made by a person claiming a benefit under it, and must have been made with intent to defraud. Unless all three of these things appear, the contract as originally executed will be enforced, if it can be discovered and is still capable of execution. [Cits.]” (Emphasis supplied.) International Harvester Co. v. Davis, 13 Ga. App. 1, 3 (1) (78 SE 770) (1913).

Judgment affirmed.

Beasley and Johnson, JJ., concur.