text:
    73992.
    PUETT v. McCANNON et al.
    (358 SE2d 300)
   McMurray, Presiding Judge.

Tricia McCannon and David Dobbs (plaintiffs) filed this action against Thomas I. Puett, d/b/a Mews Development Company (defendant) seeking a declaration of their rights as tenants under a lease agreement on real property owned by defendant. Defendant answered, denying the material allegations of the complaint and counterclaimed seeking a declaration of his rights as landlord under the lease agreement. The defendant filed a motion for summary judgment and plaintiffs filed their motion for partial summary judgment. Upon consideration thereof, the trial court entered the following order:

“The facts of this matter are basically undisputed. On April 18, 1983, Plaintiffs leased the premises located at 1536 Monroe Drive, Atlanta, Fulton County, Georgia, (the Premises) from H. F. Woodall, Jr. (Woodall) for a term of 5 years, with an option to extend the lease for an additional 2 years. Said lease provided in part that the landlord would pay for all utilities and that the landlord would be responsible for the upkeep, maintenance and repair of the building exterior, grounds and common areas of the Premises. On May 3, 1983, Woodall filed a petition seeking relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Georgia. On July 25, 1984, the Bankruptcy Court entered an Order authorizing sale of the Premises free and clear of all liens and encumbrances on the Premises. Woodall filed a Motion for Authority to Reject the lease which was granted on September 11, 1984. Thereafter, Woodall rejected the lease. Plaintiffs elected to remain on the Premises for the remainder of their lease and to exercise their option to extend the lease for 2 years. Woodall then sold the Premises to Defendant Mews Development Corporation. On January 31,1985, the Defendant notified the Plaintiffs that it would cease providing utilities or repairs of any kind to the Premises.

“The parties agree that, pursuant to the Order of Bankruptcy and the provisions of 11 U.S.C. § 365 (h), the Defendant has no obligation to provide services as required by the lease; however, the Plaintiff[s] [are] entitled to deduct from the rent due any and all damages incurred as a result of Defendant’s failure to provide such services.

“Defendant has agreed to allow Plaintiffs to alter the Premises for the purpose of enabling Plaintiffs to provide separately metered utilities. However, Defendant contends that Plaintiffs cannot deduct from the rent the costs of providing independent utilities. Further, Defendant has required Plaintiffs to use an architect and a bonded contractor in making provisions for independent utilities.”

From these facts, the trial court entered partial summary judgment in favor of plaintiffs holding that “Defendants shall allow the Plaintiffs to occupy the Premises and to set-off against the rent the cost of utilities, repairs and any other damages caused by the Defendant’s nonperformance of the lease covenants.” The trial court further held that “the landlord having elected not to provide utilities, the tenants are required to provide the utilities to themselves in the manner they [choose].” Defendant now appeals. Held:

1. The pivitol issue raised in defendant’s first, second and seventh enumerations of error is whether the trial court erred when it declared that defendant “shall allow the Plaintiffs to occupy the Premises and to set off against the rent the cost of utilities, repairs and any other damages caused by Defendant’s nonperformance of the lease covenants.”

The trial court expressly based its holding upon plaintiffs’ rights as defined by 11 USCA § 365. This part of the Bankruptcy Act provides debtor-landlords the option of assuming or rejecting executory contracts and unexpired lease agreements. 11 USCA § 365 (a). See 2 Collier on Bankruptcy, ¶ 365.03 (15th ed. 1979). In the event the debtor-landlords elect to reject their unexpired lease agreements, their tenants may choose to remain in the leased premises. 11 USCA § 365 (h) (1) provides in pertinent part as follows: “If the trustee rejects an unexpired lease of real property of the debtor under which the debtor is lessor, . . . the lessee . . . under such lease . . . may treat such lease ... as terminated by such rejection, where the disaf-firmance by the trustee amounts to such a breach as would entitle the lessee ... to treat such lease ... as terminated by virtue of its own terms, applicable nonbankruptcy law, or other agreements the lessee . . . has made with other parties; or, in the alternative, the lessee . . . may remain in possession of the leasehold . . . under any lease . . . the term of which has commenced for the balance of such term and for any renewal of extension of such term that is enforceable by such lessee . . . under applicable nonbankruptcy law.”

If the tenant elects to remain in the leased premises, their rights will be modified pursuant to 11 USCA § 365 (h) (2). This subsection provides in pertinent part as follows: “If such lessee . . . remains in possession as provided in paragraph (1) of this subsection, such lessee . . . may offset against the rent reserved under such lease ... for the balance of the term after the date of rejection of such lease . . . and any such renewal or extension thereof, any damages occurring after such date caused by the nonperformance of any obligation of the debtor under such lease . . . after such date, but such lessee . . . does not have any rights against the estate on account of any damages arising after such date from such rejection, other than such offset.”

The primary goal of the above provisions of the Bankruptcy Code is to relieve bankrupt landlords of the burden of performing affirmative acts under duress and to preserve the bankrupt landlord’s estate. See 2 Collier on Bankruptcy ¶ 365.01 (15th ed., 1979). However, by allowing tenants to remain in possession of the leased premises, perform affirmative acts no longer executed by bankrupt landlords and deduct the resulting additional costs from their prospective rental payments, a balance is offered to offset the economic hardships often cast upon innocent tenants by such modifications. See In re Stable Mews Assoc., 35 B.R. 603, 606-607 (Bkrtcy. 1983). From this perspective, it appears the only issue remaining for resolution in this division of the case sub judice is whether plaintiffs’ costs of providing separately metered utilities on the leased premises are damages of the nature contemplated by 11 USCA § 365 (h) (2).

Rejection of an executory contract under § 365 of the Bankruptcy Code constitutes a breach and the injured party is entitled to assert a claim based thereon. In re Murphy v. C & W Ltd. Corp., 694 F2d 172, 174-175 (8th Cir. 1982); In re Midwest Polychem, 61 B.R. 559, 563 (Bkrtcy. N.D. Illinois 1986). “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. See Simmons v. Boros, 176 Ga. App. 346, 347 (1) (335 SE2d 662). Applying this principle in the case sub judice, we find the cost of providing separately metered utilities to the leased premises was within the contemplation of the parties at the time the lease contract was made. Consequently, the trial court did not err in granting summary judgment in favor of plaintiffs in this regard. Plaintiffs may offset from rent the cost of providing separately metered utilities to the leased premises.

2. In his third and fourth enumerations of error defendant contends plaintiffs’ claims are barred by the doctrines of res judicata and collateral estoppel. Defendant argues that the bankruptcy court’s order, allowing Woodall to reject the lease agreement he entered into with plaintiffs, foreclosed judicial dispute resolution concerning plaintiffs’ options resulting from rejection of said lease agreement.

Under a plea of res judicata “a former adjudication is a bar as to all matters placed in issue or which might have been placed in issue between the same parties, or their privies, upon the same cause of action.” (Emphasis supplied.) Smith v. Wood, 115 Ga. App. 265, 266 (1) (154 SE2d 646). Under a plea of collateral estoppel “the former adjudication is a bar if the same issues were litigated by the parties or their privies in the previous action, though it is not essential that it be upon the same cause of action. [Cits.]” Smith v. Wood, 115 Ga. App. 265, 266 (1), supra.

The controversy in the case sub judice arose from an action wherein plaintiffs were primarily seeking a declaration of their rights under 11 USCA § 365 (h). The former adjudication in the bankruptcy court was based on Woodall’s motion to reject the lease agreement he entered into with plaintiffs. In his motion, Woodall did not request a declaration of rights resulting from rejection of said lease agreement and it appears the bankruptcy court did not address this issue when it ruled on the propriety of rejecting the lease agreement. Further, there is no indication that the issue of plaintiffs’ rights under 11 USCA § 365 (h) (2) was disputed at the time the bankruptcy court entered its order authorizing rejection of the lease agreement. (This conclusion is supported by the fact that plaintiffs did not oppose Woodall’s motion to reject the lease agreement.) The conflict now begging resolution did not arise until after the bankruptcy court entered its order authorizing rejection of the lease agreement and after defendant purchased the leased premises.

“[A] former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants . . .” Durham v. Crawford, 196 Ga. 381, 386 (4), 387 (26 SE2d 778).

In the case sub judice, since there is nothing in the record indicating a former adjudication based upon the “same cause of action” and since the issues before the trial court were not resolved or were not ripe for resolution at the time the bankruptcy court entered its order authorizing rejection of the lease agreements, the trial court did not err in failing to dismiss plaintiffs’ complaint based on the doctrines of res judicata or collateral estoppel. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 344 (2), 345 (270 SE2d 883).

3. Defendant contends in his fifth enumeration of error that the trial court “erred in failing to find that [plaintiffs’] lawsuit constitutes an impermissible collateral attack upon the judgment of the Bankruptcy Court.”

A collateral attack upon a prior judgment has been characterized as “an attempt to avoid, defeat or evade a judicial decree, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking [the prior judgment].” IB Moore’s Fed. Practice ¶ 0.407, at 286 (2d ed. 1948).

In the case sub judice, the trial court’s order allowing plaintiffs to offset from rent damages sustained by plaintiffs as a result of rejection of the lease agreement in no way contravenes the bankruptcy court’s order allowing Woodall to reject the lease agreement. On the contrary, since Woodall elected to avoid performing the affirmative covenants required of him under the executory lease agreement, the trial court’s order clarifies and reinforces thosé rights declared by the bankruptcy court and afforded to plaintiffs by 11 USCA § 365 (h) (2). This enumeration of error is without merit.

4. Next, defendant contends in his sixth enumeration of error that the trial “court erred in failing to find that [plaintiffs] must conduct their construction on the Premises subject to the reasonable conditions of [defendant], including the providing of a performance bond, and the use of licensed, bonded architects and engineers.” Defendant argues that these conditions must be placed on plaintiffs in order “to protect other tenants from damage” and to preserve the leased premises. We do not agree.

Defendant cites no authority in support of his contention and we find nothing in § 365 of the Bankruptcy Code which requires tenants to obey demands of bankrupt landlords or their successors in title when the tenants are providing themselves affirmative relief for those covenants no longer provided by their landlords as a result of rejection of their lease agreements. Further, defendant’s argument concerning preservation of the leased premises “goes too far. Nowhere does Congress exempt the tenants remaining in possession from liability for the damage they may cause. Unlike the limit on damages recoverable against the trustee, the [Bankruptcy] Code places no cap on the damages recoverable against the tenants. If the tenant’s negligence causes the trustee to resume servicing, [the leased premises], nothing in the [Bankruptcy] Code prevents that cost from being passed on to [the tenants].” In re Stable Mews Assoc., 35 B. R. 603, 607-608, supra.

Accordingly, in the case sub judice, defendant may not direct plaintiffs in performing the affirmative acts which are reasonably required as a result of Woodall’s rejection of the lease agreement. The trial court did not err in failing to order plaintiffs to obey defendant’s demands with regard to installation of the separately metered utilities.

5. Other issues raised in defendant’s argument relate to matters which remain in the trial court and are not before this court for resolution.

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Decided June 1, 1987.

Robert H. Hishon, for appellant.

Russell S. Thomas, for appellees.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    74337.
    BRADDY et al. v. MORGAN OIL COMPANY, INC.
    (358 SE2d 305)
   Banke, Presiding Judge.

In November of 1984, the parties entered into a “Commission Marketing and Lease Agreement,” pursuant to which the appellee, Morgan Oil Company, Inc., was to supply petroleum products to the appellants, Raymond C. and Melvin A. Braddy, for resale to the public at a convenience store operated by them in Manchester, Georgia. The agreement called for all of the gross receipts from such sales to be remitted to Morgan Oil by the Braddys and for Morgan Oil then to compensate the Braddys in accordance with the following formula: “Compensation to [the Braddys] shall be based on Morgan Oil’s ‘laid in’ cost, which is defined as Morgan Oil’s cost from Shell Oil Company terminal at Macon, Georgia, plus common carrier freight rates plus 16.5 cents per gallon state and federal tax plus 3% Georgia sales tax. The difference between ‘laid in’ cost and retail shall be divided between Morgan Oil and [the Braddys] on a 50-50 basis.”

The present dispute arose over the parties’ interpretation of the phrase, “Morgan Oil’s cost from Shell Oil.” The Braddys contend that the term was intended to refer solely to the actual invoice price paid to Shell Oil, whereas Morgan Oil interprets the term to include certain overhead costs as well.

In reviewing the weekly settlement statements furnished to them by Morgan Oil, the Braddys observed that Morgan’s calculations reflected an unusually high cost for the gasoline in comparison with the cost of other brands of gasoline they were distributing at other convenience stores they operated. As a result of this discrepancy, the Brad-dys notified Morgan Oil that they considered the “laid in” costs as reported in the weekly statements to be greatly inflated, and they requested documentation from which the actual “laid in” cost could be determined. They further informed Morgan Oil that they deemed it to be in breach of the lease agreement because of the alleged deficiency.

Morgan Oil initially responded that its calculations were in compliance with the agreement and that no improper enhancement of the “laid in” costs had occurred. However, it subsequently acknowledged having underpaid the Braddys by $7,257.46 and tendered them a check in that amount. The Braddys returned this check, explaining that they could not ascertain whether it included all that was owed them, inasmuch as Morgan Oil still had not provided them with sufficient documentation to enable them to verify its figures. Also, the Braddys again informed Morgan Oil that they considered it to be in material default of the lease agreement as a result of the alleged deficiencies; and they accordingly declared the agreement “terminated pursuant to paragraph 18,” which provides for such termination in the event of a failure to correct a default within 10 days of notification thereof.

While continuing to do business with Morgan Oil under the agreement, the Braddys filed the present action to obtain a declaratory judgment regarding their termination rights, as well as to recover actual and punitive damages for breach of contract, conversion, and fraud. Morgan Oil moved for and was granted summary judgment with respect to the tort and declaratory judgment counts of the complaint, and the Braddys filed this appeal. Held:

1. The Braddys contend that the trial court erred in failing to consider certain discovery depositions which were on file with the court but remained under seal at the time the trial court ruled on the motion for summary judgment. In his order, the trial judge specified that he had read and considered “all briefs of the parties” but did not specifically state that he had considered the depositions. This court has held that such a recital does not overcome the presumption that the trial court has considered the entire record. See Eunice v. Citicorp Homeowners, 167 Ga. App. 335 (306 SE2d 395) (1983). Moreover, the Braddys have not shown that any of the testimony contained in the depositions raised any genuine issue of material fact with regard to the tort and declaratory judgment counts of the complaint. Accordingly, this enumeration of error establishes no ground for reversal. See Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730, 734 (279 SE2d 442) (1981). See also Davis v. B. E. & K., Inc., 162 Ga. App. 92, 94 (290 SE2d 305) (1982) (Carley, J., concurring specially).

2. The trial court did not err in granting summary judgment to Morgan Oil with respect to the declaratory judgment claim. Pursuant to OCGA § 9-4-1, declaratory judgments are authorized where needed to “settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” The Braddys submit that declaratory judgment relief is needed to enable them to determine whether they are obligated to continue doing business with Morgan Oil under the agreement or whether they instead have sufficient ground to consider the agreement terminated. See generally Gay v. Hunt, 221 Ga. 841 (148 SE2d 310) (1966). However, this question will necessarily be resolved by the outcome of the breach of contract claim, which is presently pending before the trial court. It has long been held that an action for a declaratory judgment does not lie where a simple action for breach of contract will give full and complete relief. See City of Summerville v. Sellers, 82 Ga. App. 361 (61 SE2d 160) (1950). Moreover, “[a] declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding pending in a court of competent jurisdiction in which the same questions may be raised and determined. [Cits.]” Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 381 (317 SE2d 269) (1984). See also Kiker v. Hefner, 119 Ga. App. 629 (2) (168 SE2d 637) (1969).

3. The trial court was also correct in ruling that no action for conversion lies under the circumstances of the present case. “ ‘Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another which is contrary to the owner’s rights. [Cit.]’ ” Rush v. Farmers &c. Bank, 162 Ga. App. 65 (290 SE2d 164) (1982). The agreement between the parties provided that all sums collected by the Braddys were immediately to become the sole property of Morgan Oil and were to remain so until such time as the Braddys’ share was remitted back to them by Morgan Oil. Whether Morgan Oil has remitted to the Braddys all they are entitled to is solely a question of contractual interpretation. Thus, the trial court did not err in granting summary judgment to Morgan Oil on the conversion claim.

4. The trial court similarly did not err in granting summary judgment to Morgan Oil with respect to the Braddys’ fraud claim. See generally Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (3) (16 SE2d 176) (1941). The testimony offered by the appellants in support of this claim was self-contradictory. In an affidavit offered in opposition to Morgan Oil’s motion for summary judgment, Raymond Braddy averred that Leonard Morgan had told him prior to their execution of the agreement that the “laid in” costs were to include only the price of the gasoline actually paid to Shell Oil, plus freight and taxes. However, in a prior deposition, Raymond Braddy had testified that no such preliminary discussion occurred, and he has offered no explanation whatever for the contradiction. Consequently, the trial court was authorized to construe his testimony against him and to disregard his affidavit. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986).

5. Because summary judgment was properly granted to Morgan Oil with respect to the tort claims, it follows that the Braddys have no claim for punitive damages. See Horne v. Drachman, 247 Ga. 802 (280 SE2d 338) (1981); OCGA § 13-6-10.

Judgment affirmed.

Car ley and Benham, JJ., concur.

Decided June 1, 1987.

John T. Croley, Jr., for appellants.

James E. Humes II, for appellee.


author: McMurray, Presiding Judge.

text:
    74370.
    WESTERN HOST ATLANTA, INC. v. BASS et al.
    (358 SE2d 312)
    Decided June 1, 1987.

      Robert J. Kaufman, Fredric Chaiken, for appellant.
   McMurray, Presiding Judge.

Plaintiff, an entertainer, brought suit against defendant seeking damages stemming from the alleged breach of two performance contracts. The case was tried by the trial court sitting without a jury. Upon the close of the evidence the trial court entered judgment in favor of plaintiff and against defendant in the amount of $8,000. This sum was $3,550 less than the maximum amount of damages which plaintiff incurred.

Defendant appeals and in its sole enumeration of error contends the trial court erred by failing to hold that plaintiff did not mitigate her damages. Held:

1. The burden was upon defendant to prove that plaintiff could have lessened her damages. Mimms v. J. L. Betts Co., 9 Ga. App. 718, 720 (2) (72 SE 271). Thus, it was incumbent upon defendant to prove that plaintiff did not mitigate her damages “as far as is practicable by the use of ordinary care and diligence.” OCGA § 13-6-5. This defendant failed to do.

Although evidence was presented that defendant offered to reinstate the contracts if plaintiff was willing to perform during a two-week trial period, defendant failed to show whether plaintiff was in a position to work the two-week period into her schedule. It cannot be said, therefore, that the evidence demanded a finding that plaintiff could have mitigated her damages by the exercise of ordinary care and diligence. OCGA § 13-6-5.

2. Plaintiff’s request for imposition of damages for a frivolous appeal is denied. Although defendant’s enumeration of error is not meritorious, it is not so specious as to warrant the conclusion that the appeal was taken for the purpose of delay only. Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 683 (5) (305 SE2d 361).

Judgment affirmed.

Sognier and Beasley, JJ., concur.

Calvin A. Leipold, Jr., for appellees.


author: Birdsong, Chief Judge.

text:
    74425.
    PRESTLEY MILL PROFESSIONAL CENTER, LTD. v. NATIONAL BANK OF GEORGIA.
    (358 SE2d 307)
   Birdsong, Chief Judge.

Confirmation of Sale on Foreclosure. Prestley Mill Professional Center (Prestley) utilized National Bank of Georgia (NBG) to finance a real estate development project consisting of a small office park adjacent to a county hospital and specifically used as a medical professional office park. There were several office condominiums in the original design. Several had been completed and were in use at the time of the foreclosure in question. Two condominium units had been partially completed to include the exterior walls and roof. The interiors of the buildings were wholly incomplete with no finish and no flooring (dirt floors), and all construction apparently at a standstill because condominium sales were very slow or non-existent. A vacant lot had been set aside for subsequent construction of a third condominium but no construction had commenced upon that lot. The vacant lot, however, had been prepared for construction to include curbing, water and sewage available for connection when a building was ultimately constructed.

Prestley had executed a security deed to the premises to NBG. It is uncontested that the loan came into default and NBG exercised its right to foreclosure sale. At the sale, the bank presented the only bid for the property, at $86,000. NBG then moved for confirmation of the sale as having been made at the fair market value. The parties at the hearing did not contest the sale had been conducted procedurally in accordance with all the statutory requirements of a foreclosure sale. Prestley complained only that the knockdown price of $86,000 was not the fair market value. Both sides presented expert testimony as to their respective opinions as to market value. NBG presented evidence by an appraiser that the fair market value based upon comparables for completed units such as the foreclosed property was $80 per square foot. The two partially completed units were of different sizes and thus would command different prices. NBG’s appraiser estimated that the two incomplete units were approximately 35 percent complete. The appraiser thus valued the two incomplete units at the completed price less 65 percent completion costs, totaling individually the separate costs to place the unit in a completed state. NBG’s appraiser valued the vacant lot on the basis of other vacant lots in the area which had sold within the recent past. In arriving at the value of the vacant lot, the bank’s appraiser did not add in the cost of the development costs such as the curbing, sewage, water availability, etc. He did however consider the vacant lot was limited by being restricted to condominium use. There is no indication that the appraiser was not aware of those improvements or that he disregarded the improvements, only that the appraiser did not add those costs to the assumed value of the other comparables, which apparently were unimproved lots. The bank’s appraiser however testified that considering all factors the fair market value of the vacant lot was $12,000. The total value of the two incomplete condominiums and the vacant lot was estimated by NBG’s appraiser to be $86,000. A second witness called by the bank was a real estate broker familiar with the value of property in the county. While the broker did not appraise the property, he testified he was familiar with the property and with real estate values in the county. His testimony was in general in support of the bank’s appraiser.

Prestley called its own appraiser who offered evidence that based upon a completed condominium the value was $80 per square foot (the same as the bank’s appraisal). However, Prestley’s expert estimated the two incomplete condominiums were approximately 45-50 percent complete. Thus his estimate of the value of the two incomplete units obviously was greater than the bank’s appraiser. Additionally Prestley’s appraiser added in the enhanced value of the vacant lot because of the improvements. The greatest discrepancy in the conflicting appraisals was in the value of the vacant lot. It was the opinion of Prestley’s appraiser that the total value of the two incomplete units and the vacant lot was $152,300. The trial court as the trier of fact determined the bid by the bank was the fair market value and confirmed the sale. Prestley brings this appeal enumerating ten asserted trial errors. Held:

1. We commence our consideration of these enumerations in light of the ultimate purpose of a hearing to consider the confirmation of a foreclosure sale. The duty of the court is simply and solely to test the fairness of (1) the technical procedure of the actual sale and (2) to insure that the sale has brought at least the true market value of the property. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 491 (231 SE2d 491).

As hereinbefore noted, the parties to this appeal are both in agreement that the technical procedures met all the requirements of the law. Thus the only issue for the trial court to resolve was whether the bid sale was at least equal to the true market value. In making that determination, the trial court sits as the trier of fact, and its findings and conclusions have the effect of a jury verdict. What value is, or may have been at the time of the sale, is a question of fact to be resolved as other questions of fact are resolved and in the trial court’s resolution of that issue the court determines not only the admissibility of evidence relating to the issue but also the weight to be afforded the evidence admitted. See American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 661 (227 SE2d 460).

In this case, the trial court allowed NBG’s appraiser to testify to the fair market value of the two buildings in their unfinished state and the general procedure used to arrive at that figure. The appraiser also gave his opinion as to the market value, in situ, of the vacant lot. A real estate broker was allowed to state, in comparison to other properties in the geographical area, his opinion as to fair market value of the property in issue. However when the appraiser for the owner, Prestley, sought to add development costs as a more accurate determinative factor of fair market value and Prestley sought to attack the credibility of the bank’s appraiser by showing through cross-examination that the bank’s appraiser had not given appropriate consideration to the development costs, the trial court adamantly refused to allow such cross-examination or affirmative evidence of developmental costs. The trial court allowed both appraisers to give their opinion as to fair market value and how they arrived at those figures and thus was aware of the spread of the value from $86,000 to $152,300. Thus the trial court accepted evidence relating to the only issue before it, the market value of the property at the time of the sale and whether the sale price was at least equal to such value.

2. Most of the enumerations of asserted error deal with the refusal to admit evidence and documents going to the developmental costs, either as to the best method to compute the percentage of completion of the two unfinished buildings or the availability of utilities and parking area, curbing, etc. as those items might enhance the value of the vacant lot. However, we recognize that a confirmation proceeding is extremely narrow in scope, and in this case is solely the evaluation of the real estate sold under the power of sale as of the date of the sale. Jones v. Hamilton Mtg. Corp., supra.

3. We are not persuaded the trial court erred in refusing to consider that development costs necessarily contribute to fair market value. It is clear from the evidence presented that condominium sales were seriously depressed in the geographical area of the real estate. Thus as observed by the trial court, the only true consideration was what the properties would bring on the market and not what it had cost the developer to bring the property to its current state of development. Both appraisers were allowed to testify as to how they reached the 35 percent and 45 percent state of completion, respectively. What books they used or what standards they used could go solely to credibility. It is clear that in the administration of justice in this state as in most jurisdictions, the trial court determines the relevancy, materiality and general admissibility of evidence both on direct and cross-examination. Thus although evidence collateral to an issue may throw some light on the main issue of a case, it is necessary that trial judges be vested with some latitude as to the admissibility of this type of evidence. Ludwig v. J. J. Newberry Co., 78 Ga. App. 871 (2) (52 SE2d 485). This remains equally true where the relevancy of the questionable evidence pertains to matters in cross-examination. Ellis v. Cameron &c. Co., 171 Ga. App. 211, 212 (319 SE2d 38). We find no abuse of discretion in this case.

Decided June 1, 1987.

David T. Emerson, for appellant.

Emory A. Schwall, for appellee.

4. Likewise, we find no error in the denial of Prestley’s motion to strike the testimony of the real estate broker. Prestley argued that the broker was not an appraiser and thus could not legitimately form an opinion as to the value of the unfinished buildings nor the effect of site development upon the vacant lot. The broker clearly qualified as a broker who was familiar with real estate values in the community. As such he was qualified to give his opinion as to current market value. His lack of expertise as an appraiser or inability to appraise property went merely to the weight of his testimony and not the admissibility of his testimony. The court properly received the evidence and attached such weight to it as the court, as trier of fact, might deem appropriate.

5. Lastly considering the sufficiency of the evidence, the any evidence standard has been applied consistently in confirmation cases. See Laird v. Phenix Fed. Savings &c. Assn., 161 Ga. App. 57 (289 SE2d 11). The evidence before the trial court afforded ample proof to support the finding by the trial court as to the true market value. Alexander v. Weems, 157 Ga. App. 507, 508 (3) (277 SE2d 793). The value found by the trial court was within the range of the evidence and fully supported. Georgia Power Co. v. Redman, 137 Ga. App. 427, 428 (224 SE2d 477). We find no error to the prejudice of appellant in any of the several asserted enumerations of error.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74433.
    JACK ECKERD DRUG COMPANY OF GEORGIA, INC. v. COVINGTON.
    (358 SE2d 311)
   Banke, Presiding Judge.

This is an interlocutory appeal by the defendant in a personal injury case from an order compelling responses to interrogatories served by the plaintiff. At issue is whether the discovery order was prohibited by Rule 5 of the Uniform State Court Rules, due to the fact that the plaintiff had not served the interrogatories within six months after the defendant filed its answer.

Decided June 1, 1987.

Bryan F. Dorsey, for appellant.

Julius Galler, David A. Swift, for appellee.

The complaint was filed on September 19, 1985, and the answer was filed on October 24, 1985. The plaintiff served the interrogatories about eight months later, on June 19, 1986. The defendant contends that the plaintiff’s motion to compel responses to the interrogatories was barred under such circumstances by Rule 5 of the Uniform State Court Rules, which provides as follows: “In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer unless for cause shown the time has been extended or shortened by court order.” 253 Ga. at 816, 887. The trial court, however, apparently agreed with the plaintiff that Rule 5 was not applicable, due to the following proviso appearing both in a footnote to Rule 5 and in the preamble to the rules in general: “Rule 5 shall not be applied in any case prior to January 1, 1986.” Held:

The complete language of the preamble with reference to the effective dates of the rules is as follows: “These rules shall be effective July 1, 1985, and shall apply to all pending cases, except that Rule 5 shall not be applied in any case prior to January 1, 1986.” 253 Ga. at 800. In our view, the clear and unambiguous purpose of this proviso was to afford litigants with cases already pending on July 1, 1985, a six-month grace period to bring themselves in compliance with Rule 5. The proviso quite obviously does not, as contended by the plaintiff, purport to exempt completely from the application of Rule 5 all cases pending prior to January 1, 1986, nor do we believe it may reasonably be construed as extending the time for achieving compliance with Rule 5 to July 1, 1986. Since the plaintiff neither served his interrogatories within six months after the filing of the defendant’s answer nor obtained an order extending the time period, and since expiration of the six-month period occurred after January 1, 1986, we consequently hold that the plaintiff was barred from seeking an order compelling responses to the interrogatories.

Judgment reversed.

Carley and Benham, JJ., concur.


author: Carley, Judge.

text:
    74114.
    LEWIS v. ALFRED L. SIMPSON & COMPANY, INC.
    (358 SE2d 262)
   Carley, Judge.

Appellee-plaintiff filed suit, seeking to recover the balance allegedly due for certain landscaping work it had performed on property owned by appellant-defendant. Appellant answered and raised the affirmative defense of accord and satisfaction. The case was tried by a jury and a verdict for appellee was returned. Appellant appeals from the judgment entered on the jury’s verdict.

1. Appellant enumerates as error the denial of his motion for directed verdict as to his affirmative defense of accord and satisfaction. Appellant relies upon the following evidence: After completion of the work, appellant disputed the amount of the balance that appellee claimed was owed to it. Appellant tendered a check to appellee in an amount less than appellee claimed was owed. Appellant made this tender upon an oral condition that the check represented payment in full for the work. Appellee accepted the check over the protest that it did not accept appellant’s condition. However, notwithstanding ap-pellee’s protests, the check was cashed.

In Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga. App. 628, 629 (2) (337 SE2d 410) (1985), we held that legislative enactment of OCGA § 13-4-103 (b) had the effect of codifying the holding in Sylvania Elec. Prods. v. Elec. Wholesalers, 198 Ga. 870 (33 SE2d 5) (1945), as the applicable statutory law of this State with regard to accord and satisfaction. “In the absence of an independent agreement by a creditor that the acceptance of an amount less than the indebtedness will be taken, or is taken, in full satisfaction thereof, the mere acceptance of a check for a less sum than the amount of an unliquidated debt, remitted by the debtor with notice that it is in full satisfaction of the debt, will not amount to an accord and satisfaction unless there existed previously to the tender a bona fide dispute by the debtor as to the correctness of the amount of the debt.” (Emphasis supplied.) Sylvania Elec. Prods. v. Elec. Wholesalers, supra at 870 (1).

In this case, there was no “independent agreement” by appellee that the check tendered to it by appellant would be taken in full satisfaction of the indebtedness. As did the creditor in Sylvania Elec. Prods., supra, appellee cashed the check but only after protesting and refusing to accept appellant’s condition that the amount of the check constituted payment in full for its services. Appellee’s protest having established the absence of any “independent agreement” between the parties, the viability of the accord and satisfaction defense is dependent upon whether “there existed previously to [appellant’s] tender a bona fide dispute by [him] as to the correctness of the amount of the debt.” Sylvania Elec. Prods. v. Elec. Wholesalers, supra at 870 (1). Here unlike Sunbelt Life Ins. Co., supra, there was a preexisting dispute by appellant as to the amount that he owed to appellee. However, here, as in Sylvania Elec. Prods., supra, there was also a jury question as to whether the dispute as to the amount appellant owed appellee was a “bona fide” dispute. “Good faith requires something more than what [a] jury [would be] authorized to find was a mere arbitrary and capricious charge against the creditor . . . Since the verdict of the jury can be sustained under the law upon the theory that they did not regard the contentions of the debtor as bona fide made, and the amount of the account was otherwise conceded to be correct, the judgment to the [trial court] must be [affirmed].” Sylvania Elec. Prods. v. Elec. Wholesalers, supra at 876.

Decided May 19, 1987

Rehearing denied June 2, 1987

Robert H. Hishon, Hugh M. Worsham, Jr., for appellant.

G. Roger Land, Herbert W. Benson, for appellee.

Appellant’s reliance upon Perma Ad Ideas of America, v. Mayville, 158 Ga. App. 707 (282 SE2d 128) (1981) and Hartline-Thomas, Inc. v. H. W. Ivey Constr. Co., Inc., 161 Ga. App. 91 (289 SE2d 296) (1982) as authority for a contrary holding is misplaced. Those cases are distinguishable on either the law or the facts. It is unclear whether those cases were decided under the law as it stood prior to enactment of OCGA § 13-4-103 (b). If they were, they are clearly distinguishable on that basis. If they were decided under existing OCGA § 13-4-103 (b), the recited facts show the absence therein of any jury question with regard to whether the debtor’s dispute of the amount owed to the creditor was bona fide. This would distinguish those cases from the case sub judice. In either event, both cases were correctly decided on the applicable law and facts and neither is authority for holding that the denial of appellant’s motion for a directed verdict was erroneous under the facts and law applicable to this case.

2. The trial court’s refusal to give several of appellant’s requests to charge is enumerated as error. The refused requests relate to appellant’s accord and satisfaction defense. Appellant’s requests contain statements of the law which may well have been accurate prior to enactment of OCGA § 13-4-103 (b). They are not, however, accurate statements of the current law of accord and satisfaction. As given, the trial court’s instruction on the defense of accord and satisfaction was full, fair and accurate. There was no error in refusing appellant’s requests.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge. Carley, Judge,

text:
    73907.
    JOHNSON v. THE STATE.
    (358 SE2d 313)
   Banke, Presiding Judge.

Johnson, a 16-year-old juvenile charged with armed robbery and attempted armed robbery, appeals the transfer of his prosecution from the Juvenile Court of Barrow County to the Superior Court of Barrow County. Held:

1. The threshold issue for our consideration concerns the timeliness of the filing of the appellant’s notice of appeal. The record discloses that the juvenile court entered its order granting the state’s motion to transfer the case to the superior court on May 28, 1986. Within 30 days thereafter, the appellant’s counsel mailed a notice of appeal to the “Juvenile Court, Winder, Georgia.” However, instead of being delivered to the clerk’s office for filing, the notice was inadvertently delivered to the juvenile court probation office, where it remained until 55 days after entry of the transfer order. At that time, the error was discovered, and the notice was filed in the clerk’s office. The state has raised no objection to the timeliness of the filing of the notice; however, it is not within the state’s power to confer appellate jurisdiction or to waive the absence of it. See Blackburn v. State, 169 Ga. App. 498 (314 SE2d 244) (1984).

This court has recently reaffirmed the principle that even in a criminal case, the timely filing of a notice of appeal in compliance with OCGA §§ 5-6-38 (a) and 5-6-39 is essential to confer appellate jurisdiction. See Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987). However, it has long been recognized that an abortive attempt to appeal a criminal conviction due to a technical error on the part of the appellant’s attorney may result in a denial of the appellant’s constitutional right to effective assistance of counsel for which habeas corpus relief would lie. See Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985); Cunningham v. State, 232 Ga. 416 (207 SE2d 48) (1974); McAuliffe v. Rutledge, 231 Ga. 1 (200 SE2d 100) (1973); State v. Denson, 236 Ga. 239, 240 (223 SE2d 640) (1976). While no issue of substantive or technical ineffective assistance of counsel has been raised by the parties, nevertheless, in the interest of judicial economy we deem it appropriate to address the merits of the appellant’s enumeration of error. Accord Mitchell v. State, 157 Ga. App. 181 (276 SE2d 864) (1981).

2. The appellant contends that the juvenile court erred in failing to conduct the hearing on the state’s transfer motion within 10 days after the filing of the delinquency petition. We disagree.

The appellant was arrested and placed in the juvenile youth detention center on May 12, 1986, and the state filed both its delinquency petition and its motion to transfer the case to superior court on May 14. The transfer motion was initially scheduled to be heard on May 20, but the appellant objected to proceeding with the hearing at that time on the ground that he had not been properly served with the petition. Although the state attempted to perfect service on that same date, it failed in that the appellant received only the summons, without a copy of the petition. The transfer hearing was rescheduled for May 23; and, on that day, realizing that service still had not been properly effected, the district attorney asked the appellant’s counsel to consent to another continuance of the hearing. Counsel refused, but the hearing was nevertheless continued again, this time to May 27. On that date, the appellant’s counsel moved to dismiss the transfer motion on the ground that the hearing had not been held within 10 days of the filing of the petition.

OCGA § 15-11-26 (a) specifies that the court shall fix a date for an adjudicatory hearing on a petition alleging delinquency not later than 10 days from the date of the filing of the petition if the child is in detention. The appellant submits that this provision must be construed in pari materia with OCGA § 15-11-39, which provides that a transfer of the charges to another court for prosecution must be done “before hearing the petition on its merits,” with the result that the transfer hearing must also be held within 10 days of the filing of the petition. However, this court has previously ruled that OCGA § 15-11-26 (a) requires merely that a hearing date be set within 10 days of the filing of the petition and not that the hearing itself be conducted within that period. See J. B. v. State, 171 Ga. App. 373 (2) (319 SE2d 465) (1984); P. L. A. v. State, 172 Ga. App. 820 (2) (324 SE2d 781) (1984). Moreover, it has been held that the 10-day rule is not absolute and that a continuance may be granted in the sound discretion of the trial court. See P. L. A., supra; Brown v. Fulton County DFACS, 136 Ga. App. 308 (1) (220 SE2d 790) (1975). Although the two continuances in the present case may well have been occasioned by the state’s lack of diligence, there has been no suggestion that any harm or prejudice resulted therefrom; and we hold that the court did not abuse its discretion in continuing the hearing date so as to ensure that the appellant received adequate notice of the contents of the petition.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Sognier and Benham, JJ., concur. Deen, P. J., Carley, Pope, and Beasley, JJ., dissent.

Carley, Judge,

dissenting.

I must dissent in this case because I believe that this appeal should be dismissed and not considered on its merits. “The requirement of a timely filed notice of appeal is jurisdictional, even as to criminal cases, and, absent an extension, upon the failure to file such notice within 30 days after a judgment becomes final the appeal must be dismissed. [Cits.]” Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987).

Decided June 2, 1987.

James W. Smith, for appellant.

Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.

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


author: Benham, Judge.

text:
    74108.
    CARDOZA v. THE STATE.
    (358 SE2d 315)
   Benham, Judge.

Appellant was indicted for and convicted of burglary, simple battery, wearing a mask, and four counts of rape. On appeal, he contends that the rape charges should have been merged into one charge, and that the trial court abused its discretion by permitting the State to use appellant’s out-of-court statement during its cross-examination of him before determining whether the statement was given voluntarily.

1. In order to resolve the first issue raised by appellant, it is necessary to examine the evidence with particularity. The victim’s testimony at trial, corroborated by physical evidence and, in part, appellant’s testimony, showed that, without invitation, appellant entered the victim’s second-story apartment round 2:30 a.m. through a sliding glass door after climbing up onto her balcony. Wearing a bag over his head as a mask, appellant tied the victim’s hands behind her back with an extension cord he had brought into the apartment, blindfolded her with a towel, took her to a bedroom, ripped her clothing off, and had sexual intercourse with her against her will.

After a short time, appellant arose, went to the kitchen, and returned with a screwdriver. He abused her sexually with the screwdriver for a time, then once again had sexual intercourse with the victim against her will.

That act of intercourse ended when the victim persuaded appellant to permit her to answer the telephone. He followed her to the telephone, in another room, and held a knife to her throat as she answered. After ascertaining that the caller had already hung up, appellant took the victim to a couch in that room and had sexual intercourse with her against her will.

When the telephone rang again, appellant once more was persuaded to allow the victim to answer. Again, the caller had already hung up before appellant permitted the victim to go to the telephone. After a short interval during which appellant and the victim conversed, appellant put the victim on the floor and had sexual intercourse with her against her will.

Appellant argues that there was but one rape, lasting some 45 minutes, and that he cannot be convicted of the later three because, in effect, the State used up all the evidence to prove a single rape. See Haynes v. State, 249 Ga. 119 (288 SE2d 185) (1982). We disagree.

The victim testified with particularity that she suffered four separate rapes by appellant. With regard to each episode of forced sexual intercourse, the victim testified that the elements of the offense of rape occurred. Although appellant contended at trial and contends on appeal that there was one long sexual encounter which was interrupted on three occasions, the jury was authorized to find from the victim’s testimony that each episode was a separate and complete offense, that each episode of criminal intercourse had ended and was followed by some other activity before the next episode began. “The . . . crimes charged here were completed one after the other, but are separate and distinct. [Cit.] Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. [Cit.] Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act. [Cit.]” Talley v. State, 164 Ga. App. 150 (7) (296 SE2d 173) (1982).

2. During cross-examination of appellant, and over his objection, the State used an out-of-court statement by appellant to impeach his testimony. Appellant had already testified about the circumstances of giving the statement, swearing that he had done so in response to threats by an investigator that if he did not, he would spend the rest of his life in prison. After cross-examination of appellant was concluded, the State recalled the investigator and adduced from his testimony that appellant made the statement freely and voluntarily after being informed of his rights.

“[W]here a prior inconsistent statement is introduced for impeachment purposes only, even though the issue of voluntariness is raised, voluntariness can be shown without resorting to a full blown Jackson-Denno hearing. [Cits.] It is true that in this case evidence of voluntariness was not presented until after the statement was admitted. However, where voluntariness is clear from the record, there is no reversible error in the failure to introduce the evidence of voluntariness before admitting the statement.” Wilson v. State, 254 Ga. 679 (2) (333 SE2d 589) (1985). The evidence in support of the voluntariness of appellant’s statement was sufficient, and we find no error in its use.

Decided June 2, 1987.

Columbus Gilmore, for appellant.

Sam B. Sibley, Jr., District Attorney, Richard H. Goolsby, Charles R. Sheppard, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    74120, 74121.
    WATKINS v. LASER/PRINT-ATLANTA, INC. et al.; and vice versa.
    (358 SE2d 477)
   Sognier, Judge.

Charles L. Watkins, III, brought suit against his former employer, Laser/Print-Atlanta, Inc., and three of its employees, David Waugh, Mark Graves, and David Pinney (hereinafter collectively referred to as Laser/Print). Watkins later voluntarily dismissed Pinney from the suit and added Rene Cote, president of Laser/Print, as a defendant. The suit alleged damages resulting from libel, slander, malicious prosecution and malicious arrest. The trial court granted partial summary judgment in favor of Laser/Print on the malicious prosecution and malicious arrest counts, and denied Laser/Prints’s motions for summary judgment on the libel and slander counts. All parties appeal.

The record reveals that Watkins left Laser/Print’s employ in 1984 to work for a competitor. Prior to his departure Watkins and Graves had a heated conversation concerning Watkins’ resignation. After Watkins left, certain Laser/Print computer programs were discovered to be missing. Laser/Print swore out warrants against Watkins, who was arrested on charges of terroristic threats and theft by taking of computer software.

1. In case number 74120, the main appeal, Watkins contends the trial court erred by granting partial summary judgment to Laser/ Print on the malicious prosecution and malicious arrest counts. Watkins argues that contrary to the trial court’s finding otherwise, the criminal cases against him have been abandoned, constituting a termination favorable to him. We do not agree. It is uncontroverted that subsequent to Watkins’ arrest, the warrants were placed on the “dead docket.” Since four years have not elapsed since the warrants were issued, nothing prevents the district attorney from proceeding with a prosecution. See OCGA § 17-3-1 (c). “The present disposition simply does not constitute an abandonment and/or termination of the proceeding, absent a subsequent formal entry of dismissal of the criminal charges. [Cits.]” McCord v. Jones, 168 Ga. App. 891, 893 (311 SE2d 209) (1983). The order of the Gwinnett County Superior Court releasing the cash bond posted by Watkins is not such a “formal entry of dismissal.” Since termination of the prosecution in Watkins’ favor is an essential element of his claims for malicious prosecution and malicious arrest, Medoc Corp. v. Keel, 166 Ga. App. 615 (1) (305 SE2d 134) (1983); see also McCord, supra, the trial court properly granted summary judgment in favor of Laser/Print on these counts.

2. In case number 74121, the cross appeal, Laser/Print first contends the trial court erred by denying its motion for summary judgment as to the libel count. Laser/Print argues the only written defamation alleged attributable to Laser/Print is the warrant signed by Graves which, under the provisions of OCGA § 51-5-8, is absolutely privileged. It is well established that an affidavit before a magistrate, made for the purpose of causing an arrest, will not support an action for libel, though falsely and maliciously made. Francis v. Wood, 75 Ga. 648 (1886). “[T]he affidavit upon which the warrant issued affords no basis for a recovery under a defamation theory. [Cit.]” Tetrault v. Shelton, 179 Ga. App. 746, 747 (1) (347 SE2d 636) (1986). The remedy where such an affidavit is falsely and maliciously sworn lies rather in the torts of malicious arrest and malicious prosecution (the elements of which we have decided, in Division 1, Watkins failed to show). Although Watkins’ deposition also contains an allegation that the separation notice filed by Laser/Print with the Georgia Department of Labor was defamatory, OCGA § 34-8-11 provides that this writing is absolutely privileged as well. See also Georgia Power Co. v. Busbin, 242 Ga. 612, 616 (7) (250 SE2d 442) (1978). As it appears that all instances of libel alleged were privileged absolutely, Laser/Print was entitled to judgment as a matter of law, and the trial court erred by denying its motion for summary judgment as to the libel count. OCGA § 9-11-56 (c).

3. Laser/Print next contends the trial court erroneously denied its motion for summary judgment on the slander count. Three instances of slander were alleged by Watkins. First, Watkins alleged that a co-worker, Pam Davis, was told by Graves that Watkins had been arrested. Second, Watkins alleged that in a telephone conversation between Graves and Watkins’ new employer, Graves called Watkins a thief. In addition (although not briefed or argued by Laser/ Print), Watkins alleged that a telephone conversation between Laser/ Print and a prospective employer was defamatory, and resulted in cancellation of a scheduled job interview.

Laser/Print argues that the information imparted to Davis is not slander because Graves told Davis only that Watkins had been arrested, which was true. It is axiomatic that truth is an absolute defense in a defamation action, OCGA § 51-5-6, and we therefore agree with Laser/Print that as to the publication to Davis, no slander occurred. We do not agree, however, with its argument that because the telephone call from Graves to Watkins’ new employer was privileged, no slander existed. The privilege asserted by Laser/Print is that set forth in OCGA § 51-5-7 (3) as to “[statements made with a good faith intent on the part of the speaker to protect his interest in a matter in which it is concerned.” Even assuming, arguendo, that the statement was so privileged, this privilege is conditional rather than absolute, Fedderwitz v. Lamb, 195 Ga. 691 (25 SE2d 414) (1943), and it remains for a jury to determine whether the intention was such as to make the defense complete. Holmes v. Clisby, 118 Ga. 820, 825 (3) (45 SE 684) (1903). This rationale applies as well to any conversation between Laser/Print and the prospective employer, should Watkins prove that any such conversation took place. The trial court therefore did not err by denying Laser/Print’s motion for summary judgment as to the slander count.

4. Laser/Print finally contends the trial court erred by allowing the addition of Rene Cote, a new defendant, to relate back to the time of filing the initial complaint, thereby avoiding the bar of the statute of limitations as to him. “An amendment adding or changing a party may be allowed even though a separate action by or against that party would be barred by the statute of limitation. Pursuant to OCGA § 9-11-15 (c) . . . , the amendment relates back to the date of the original suit if the claim against the new party arose out of the ‘conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,’ and if ‘within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.’ This court has held that the movant may establish lack of prejudice by showing an ‘identity of interest’ between the old and the new parties and has also held that the party offering the amendment must demonstrate that he or she has not been guilty of inexcusable delay. [Cits.]” Horne v. Carswell, 167 Ga. App. 229, 230 (306 SE2d 94) (1983).

“The adding or dropping of parties requires the exercise of discretion by the trial court.” Cartin v. Boles, 155 Ga. App. 248, 254 (5) (270 SE2d 799) (1980). Since Watkins properly moved the trial court for leave to add Cote as a defendant, see Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 SE2d 649) (1976), our consideration of this enumeration is restricted to whether the trial court abused its discretion in granting the motion. As it is uncontroverted that Cote accepted service of the lawsuit on behalf of the corporation as its president, he therefore knew or should have known of the institution of the action. Further, Watkins’ original complaint named Waugh as the president of the corporation, and thus we cannot agree with Laser/Print that there is no question here of a mistake about the proper parties. In view of the circumstances, we are unable to say as a matter of law that the trial court abused its discretion by allowing the addition of Cote as a party defendant, thus permitting the claims against him to relate back to the date of filing the original complaint.

Decided June 2, 1987.

Genevieve L. Frazier, for appellant.

F. Clay Bush, George E. Duncan, Jr., for appellees.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.


text:
    73798.
    GAY et al. v. PIGGLY WIGGLY SOUTHERN, INC.
    (358 SE2d 468)
   Carley, Judge.

On December 17, 1984, Mrs. Eula Denmark was seriously injured in a vehicular collision which occurred in Jefferson County. The car in which Mrs. Denmark was a passenger was struck from the rear by a truck that was owned by appellee-defendant Piggly Wiggly Southern, Inc. (Piggly Wiggly) and which was being operated by one of its employees. Piggly Wiggly is a Georgia corporation and, for purposes of determining venue pursuant to OCGA § 14-2-63 (a), is a resident of Toombs County.

Subsequent to the collision, Mrs. Denmark was afforded medical treatment in Jefferson County. Among those who treated Mrs. Denmark were the following: Dr. Kim; Dr. Weissman; and, an employee of Physical Therapy Associates, Inc. (PTA). PTA is a foreign corporation authorized to do business in Georgia and, for purposes of determining venue pursuant to OCGA § 14-2-63 (a), is a resident of Fulton County.

On January 17, 1986, Mrs. Denmark died. Thereafter, the case sub judice was initiated by the filing of a two-count complaint in Fulton County. Piggly Wiggly, Dr. Kim, Dr. Weissman and PTA were all named as defendants in both counts of the Fulton County action. Count One of the complaint was the assertion of a claim by appellant-plaintiff Gay, who is Mrs. Denmark’s executrix. According to the allegations of this count, Mrs. Denmark had originally been injured as the result of the negligence of Piggly Wiggly’s truck driver and she had subsequently received negligent medical treatment for this injury from Dr. Kim, Dr. Weissman, and the employee of PTA. It was further alleged that Piggly Wiggly and the other defendants were, as among themselves, all joint tortfeasors whose respective and individual acts of negligence had ultimately resulted in Mrs. Denmark’s paralysis and her eventual death. Based upon these allegations, appellant Gay, in her capacity as executrix, sought to recover for the following: the pain and suffering endured by Mrs. Denmark; the medical and related ante mortem expenses incurred in caring for Mrs. Denmark; and, Mrs. Denmark’s funeral and burial expenses. As to Count Two of the complaint, the appellants-plaintiffs are the surviving children of Mrs. Denmark who were asserting a claim for the wrongful death of their mother. With regard to this wrongful death count, it was again alleged that Piggly Wiggly and the other defendants were, as among themselves, all joint tortfeasors whose respective and individual acts of negligence had ultimately resulted in Mrs. Denmark’s death. Venue of appellants’ respective counts was predicated upon the fact that Fulton County was the residence of PTA, one of the alleged joint tortfeasors.

Piggly Wiggly filed an answer to appellants’ Fulton County action, raising improper venue as one of its defenses. The trial court conducted a hearing on Piggly Wiggly’s improper venue defense and concluded that Piggly Wiggly was the original tortfeasor and that the other defendants in the case were, as to Piggly Wiggly, successive rather than joint tortfeasors. Venue of the action having been predicated upon PTA’s residence in Fulton County and the trial court having concluded that Piggly Wiggly and PTA were not, as between themselves, joint tortfeasors, appellants’ respective claims as against Piggly Wiggly were ordered transferred from Fulton to Toombs County. See Rule 19.1 of the Uniform Rules for the Superior Courts. The trial court certified its transfer order for immediate review and appellants applied to this court for an interlocutory appeal. Appellants’ application was granted and this appeal results.

1. “Suits against joint obligors, joint tort-feasors, joint promis-ors, copartners, or joint trespassers residing in different counties may be tried in either county.” (Emphasis supplied.) Ga. Const, of 1983, Art. VI, Sec. II, Par. IV. The legal concept of “joint tortfeasors” is classically understood to mean those individuals whose “separate and distinct acts of negligence concur to proximately produce an injury. [Cits.]” Travelers Indent. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 461 (3) (231 SE2d 399) (1976). The law recognizes that such individuals are jointly and severally liable to the injured party for the full amount of his damage and that they have, as among themselves, the right of contribution, which right exists independently of their joint and several liability. See OCGA § 51-12-32. One who is injured as the result of the separate and distinct negligent acts of such joint tortfeasors may sue any one of them, leaving that defendant to pursue his right of contribution against the other tortfeasors. The injured party may, on the other hand, choose to file a joint suit against some or all of such tortfeasors, bringing his action in the county of residence of any one of his chosen defendants.

The law also recognizes that there are “ ‘cases in which a person who has suffered loss or damage may have the right to sue two persons as if they were joint wrong-doers, without their being, as among themselves, joint wrong-doers.’ ” (Emphasis supplied.) Travelers Indent. Co. v. Liberty Loan Co., supra at 461-462 (3). Thus, a negligent employee and his vicariously liable employer are not “joint tortfeasors” in the classic sense, in that the employer has committed no separate and distinct act of negligence and the employee has no right of contribution against his employer. See generally Shackelford v. Green, 180 Ga. App. 617 (349 SE2d 781) (1986), aff’d 257 Ga. 9 (1987). However, an injured plaintiff does have “the right to sue” the negligent employee and his vicariously liable employer “as if they were” joint tortfeasors. Consequently, for purposes of venue, a plaintiff can bring a suit jointly against both a negligent employee and his vicariously liable employer in the county of residence of either. See generally Jones v. Chandler, 88 Ga. App. 103 (76 SE2d 237) (1953).

Accordingly, in some legal senses, including the satisfaction of constitutional venue requirements, “joint tortfeasors” is a somewhat broader concept, embracing more than merely those individuals whose own, separate acts of negligence have allegedly produced a single injury and who have, as among themselves, an independent right of contribution. “Joint tortfeasors” is not limited to this concept of “classic” joint tortfeasors, but may extend also to include the concept of “vicarious” joint tortfeasors. Thus, if, under the circumstances of this case, the employees of Piggly Wiggly and PTA can be considered to be classic joint tortfeasors as between each other, then Piggly Wiggly and PTA, as vicarious joint tortfeasors with their respective employees, can be considered to be classic joint tortfeasors as between themselves and venue in Fulton County would be proper. If, on the other hand, the employees cannot be considered to be classic joint tortfeasors as between each other, then neither can Piggly Wiggly and PTA and the trial court correctly held that proper venue of a suit solely against Piggly Wiggly would be Toombs County.

2. “ ‘It has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff’s damage. However, . . . concert of action is not required — concurrent and independent wrongdoers are joint tortfeasors if their actions produce a single indivisible result and a rational apportionment of damages cannot be made.’ [Cit.] Thus, ‘ “[t]he correct procedure [for determining whether a joint tortfeasor relationship exists] is to look first to the time of the commission of the acts. If there was concert of action, then there is no need to go further to establish entire liability. But if there was no concert, the next step should be to look to the combined effect of the several acts. If the acts result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts. However, if the combined result is a single and indivisible injury, the liability should be entire. Thus, the true distinction to be made is between injuries which are divisible and those which are indivisible[Cit.]’ [Cit.]” (Emphasis in original.) Phillips v. Tellis, 181 Ga. App. 449-450 (352 SE2d 630) (1987).

Under the factual allegations of the instant case, there was no concert of action as between Piggly Wiggly’s employee and any of the other defendants or their employees. Piggly Wiggly’s employee was the original tortfeasor. As the result of the alleged negligence of Pig-gly Wiggly’s employee, Mrs. Denmark required medical treatment for her initial injuries and, in the course of that treatment, was subsequently subjected to alleged malpractice at the hands of the other defendants. There being no concert of action, we move to the “ ‘next stop [,which is] to look to the combined effect of the several acts.’ ” Phillips v. Tellis, supra at 450.

As to Count One, it is alleged that, as the result of the initial negligence of Piggly Wiggly’s employee combined with the subsequent negligence of the other defendants, Mrs. Denmark ultimately suffered paralysis. Although paralysis may be a physical condition that was ultimately manifested by Mrs. Denmark, it is not, under the allegations of the complaint, the only physical injury that she did sustain. She suffered a separate and distinct injury as the result of the initial vehicular collision. That original injury was then subsequently aggravated by allegedly negligent medical treatment. It was that subsequent aggravation of the original injury which ultimately resulted in Mrs. Denmark’s paralysis. The alleged aggravation of Mrs. Denmark’s original injury, “while contributing to the overall damage, was subsequent to the original injury and created in favor of [her] a separate cause of action against [the other defendants for malpractice].” Knight v. Lowery, 228 Ga. 452, 455 (185 SE2d 915) (1971), overruled on other grounds Mitchell v. Gilson, 233 Ga. 453, 455 (211 SE2d 744) (1975) and Williams v. Physicians &c. Hosp., 249 Ga. 588 (292 SE2d 705) (1982). “There is a line of cases which distinguishes tortfeasors who act in concert to produce a single indivisible injury from successive tortfeasors who do not act in concert and who produce more or less (the cases are not precise) divisible injuries. In these cases the former tortfeasors are considered joint tortfeasors . . . while the latter are termed successive tortfeasors. . . . [Cit.] [Knight c.] Lowery [, supra,] has lived a troubled life but is the rule today. [Cits.]” Posey v. Med. Center-West, 257 Ga. 55, 56 (1987).

Accordingly, not only were there separate acts of alleged negligence, there were separate injuries to Mrs. Denmark as the alleged result of those acts. See generally Knight v. Lowery, supra; Phillips v. Tellis, supra; Jones v. Brown, 164 Ga. App. 388 (297 SE2d. 325) (1982). Compare Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559 (272 SE2d 251) (1980); Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff’d 233 Ga. 453, supra. But for the alleged original negligence of Piggly Wiggly’s employee, Mrs. Denmark would not have been injured in the vehicular collision. But for the alleged subsequent negligence of the other defendants, Mrs. Denmark’s original injury would not have resulted in her ultimate paralysis. Had Mrs. Denmark’s original injury not been aggravated as the result of subsequent malpractice, then the only possible cause of action arising from the fact of her ultimate paralysis would be against Piggly Wiggly. Since Mrs. Denmark’s paralysis is the alleged result of separate injuries as well as separate acts, her ultimate paralysis is itself a divisible injury and “a reasonable basis exist[s] on which damages [can] be apportioned: [Piggly Wiggly would be] liable for the initial injury and its subsequent aggravation, but the [other defendants would be] liable only for the aggravation caused by [their] alleged malpractice. Because the damages [can] be apportioned, [Piggly Wiggly and] the [other] defendants [are] not joint tortfeasors.” Gilson v. Mitchell, supra at 329. “ ‘It .is true that [Piggly Wiggly] could [be] held liable for the aggravation of the injury caused by the [other defendants’] negligence, but . . . that liability is not the result of any concept of joint wrongs but is rather the product of the familiar rule that a wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligent conduct of others. Conversely, it would defy reason to hold the [other defendants] liable for injuries caused by the original wrongdoer which were not the consequences of [their] own carelessness. . . .’” Knight v. Lowery, supra at 455-456.

“Where there is no concert of action and ‘where apportionment is possible, even though difficult, concurrent but independent tortfeasors are not in the true sense of the word “jointly” culpable.’ [Cit.] ‘ “If (two persons) merely inflict separate wounds, and (the victim) survives, a basis for division exists, no matter how difficult the proof may be, and the torts are several.” (Cit.)’ [Cit.] ‘Each may have been “a cause” of an injury but a separate cause and logical distinction exist for apportionment of cause. (Cit.)’ [Cit.]” (Emphasis supplied.) Phillips v. Tellis, supra at 450. The claim for pain and suffering alleged by appellant Gay in Count One represents the personal injury claim that was assertible by Mrs. Denmark herself during her life. See Complete Auto Transit v. Floyd, 214 Ga. 232, 237-238 (2) (104 SE2d 208) (1958). Since Mrs. Denmark could not have brought her own suit for pain and suffering against Piggly Wiggly as an alleged joint tortfeasor with the other defendants, it follows that appel- . lant Gay cannot. The trial court correctly sustained Piggly Wiggly’s defense of improper venue as against appellant Gay’s claim for Mrs. Denmark’s pain and suffering and correctly ordered that claim against Piggly Wiggly transferred to Toombs County.

The same analysis would also apply to the claim that is being asserted by appellant Gay for the recovery of the medical and related expenses that were incurred in caring for Mrs. Denmark prior to her death. The statute which authorizes the personal representative to recover certain enumerated expenses incurred by and on behalf of a deceased person was not specifically enacted as a provision of our wrongful death statute. See Ga. L. 1952, p. 245. It was, however, unofficially codified as a wrongful death provision. See former Ga. Code Ann. § 105-1310. Although the personal representative’s right to recover those expenses has since been officially codified as a provision of our wrongful death statute, see OCGA § 51-4-5 (b), it is clear that, at least insofar as the provision serves to authorize a personal representative to recover the ante mortem expenses incurred by a deceased person, it proceeds only on the theory that the claim for such expenses survives a deceased who would otherwise have been entitled to bring a suit to recover those expenses had he lived. See generally Complete Auto Transit v. Floyd, supra at 238 (3). Accordingly, notwithstanding its current official codification as a part of our wrongful death statute, insofar as OCGA § 51-4-5 (b) gives the personal representative the right to recover a deceased’s ante mortem expenses, it is not a true wrongful death provision but a mere survival statute. “[MJedical expenses being an item of special damage incident to the recovery for the injury to the person, [such expenses cannot be recovered unless] there [is a provision] of our law for the survival of causes of action for the injury to the person. ...” (Emphasis supplied.) Davis v. Atlanta Gas Light Co., 82 Ga. App. 460, 466-467 (61 SE2d 510) (1950). It is only to the extent that OCGA § 51-4-5 (b) constitutes a “provision of our law for liability in case of funeral expenses growing out of wrongful death ...” that it is a true wrongful death provision rather than a mere survival statute. (Emphasis supplied.) Davis v. Atlanta Gas Light Co., supra at 467.

Thus, OCGA § 51-4-5 (b) provides for the survival of the deceased’s own cause of action for the medical and the other necessary expenses incurred in caring for him prior to his death. Since Mrs. Denmark could not have brought her own suit for medical and other ante mortem expenses against Piggly Wiggly as an alleged joint tortfeasor with the other defendants, it follows that appellant Gay cannot. The trial court correctly ordered the claim against Piggly Wiggly for Mrs. Denmark’s medical and other ante mortem expenses transferred to Toombs County.

3. The holding in Division 2 applies only to Mrs. Denmark’s own personal injury claims for pain and suffering and for medical and ante mortem expenses, which claims survived her death. OCGA § 9-2-41. Those claims differ from the other claim that is asserted by appellant Gay in Count One and from the claim that is asserted by Mrs. Denmark’s surviving children in Count Two. Appellant Gay’s claim for Mrs. Denmark’s funeral and burial expenses and the claim for the full value of the life of Mrs. Denmark are claims which belong to the respective appellants themselves, in their representative or individual capacities, not to Mrs. Denmark. These claims did not survive Mrs. Denmark, but to the contrary, are dependent upon the fact of her death. See OCGA §§ 51-4-2; 51-4-5 (b). Accordingly, as to these claims, the respective appellants assert the occurrence of but one injury to themselves resulting from the. combined negligence of Piggly Wiggly and that of the remaining defendants. That injury is the wrongful death of Mrs. Denmark.

Any “assertion that an original tortfeasor and a subsequently negligent physician [can never] be joint tortfeasors is without merit. [Cit.]” Parks v. Palmer, 151 Ga. App. 468, 470 (1) (260 SE2d 493) (1979). “Where the alleged negligent acts of two or more tortfeasors result in a single and indivisible injury, such as death, the alleged tortfeasors may be sued jointly. [Cits.]” (Emphasis in original.) Posey v. Med. Center-West, 180 Ga. App. 674, 676 (1) (350 SE2d 259) (1986), rev’d on other grounds, 257 Ga. 55, supra. “While it does not take concert of action to make joint tortfeasors ([cit.]) some injuries, such as those resulting in death, are single and cannot be apportioned.” Sims v. Bryan, 140 Ga. App. 69, 72 (3) (230 SE2d 39) (1976). See also Gilson v. Mitchell, 131 Ga. App. supra at 324-325. “[I]f the alleged negligent acts of two or more tortfeasors result in a single and indivisible injury, such as death ([cits.]), the alleged tortfeasors may be sued jointly, so that venue proper as to one tortfeasor is proper as to all joint tortfeasors. [Cits.]” (Emphasis in original.) Parks v. Palmer, supra at 470 (2).

Here, it is alleged that an employee of Piggly Wiggly originally injured Mrs. Denmark and that others, including an employee of PTA, subsequently aggravated that injury, with the result that Mrs. Denmark ultimately died. But for the negligence of Piggly Wiggly’s employee, Mrs. Denmark would not have died. But for the negligence of others, including an employee of PTA, Mrs. Denmark would not have died. Piggly Wiggly is vicariously and independently liable for the negligence of its employee and PTA is vicariously and independently liable for the negligence of its employee. “Thus, under the facts in this case, [Piggly Wiggly and PTA] are joint tortfeasors [as to all claims based upon Mrs. Denmark’s death]. [Cit.]” Posey v. Medi cal Center-West, 180 Ga. App. supra at 676 (1). It follows that the allegations of appellants’ complaint were sufficient to show that venue of such of their respective claims as were based upon the death of Mrs. Denmark was proper in Fulton County and the trial court erred in ordering those claims transferred to Toombs County.

Decided May 19, 1987

Rehearings denied June 3, 1987

Thomas W. Malone, for appellants.

John T. Woodall, for appellee.

4. For the reasons discussed in Division 2, the order transferring to Toombs County appellant Gay’s claims for Mrs. Denmark’s pain and suffering and for her medical and other ante mortem expenses is affirmed. For the reasons discussed in Division 3, the order transferring appellant Gay’s and the other appellants’ wrongful death claims is reversed. We note, “however, that should the legislature in the future make forum non conveniens an option for determining venue, a case such as that sub judice would be well suited for its application.” Smith v. Bd. of Regents, 165 Ga. App. 565, 566 (302 SE2d 124) (1983).

Judgment affirmed in part and reversed in part.

Banke, P. J., and Benham, J., concur.


text:
    73999.
    STATE OF GEORGIA v. LUKE.
    (358 SE2d 272)
   Benham, Judge.

When appellee was arrested on March 1, 1985, cash amounting to more than $18,000 was found in his car and on his person. At a preliminary hearing on March 4, 1985, an assistant district attorney participated on appellant’s behalf. During the hearing, the arresting officer testified that the money was taken from appellee’s car. Copies of the incident report relating to the arrest and seizure were received by the district attorney’s office on March 11, 1985. A petition for condemnation of the money seized from appellee was filed on April 5, 1985. This appeal is from the grant of summary judgment to appellee on the ground that the petition was not timely filed.

The condemnation proceeding was controlled by OCGA § 16-13-49 (e), which requires that the district attorney bring an action for condemnation within 30 days of his receipt of notice of the seizure. This court has held, as the trial court noted in its order, that the failure to comply with that time requirement prevents forfeiture. State of Ga. v. Ellis, 156 Ga. App. 779 (1) (275 SE2d 361) (1980). The trial court also noted that the statute does not specifically provide for a particular mode of notice to the district attorney, that constructive knowledge of the seizure has been construed as notice sufficient to commence the running of the time period, and that an assistant district attorney was present at appellee’s preliminary hearing at which testimony concerning the seizure was elicited. Based on those considerations, the trial court determined that this court’s decision in State of Ga. v. Waters, 173 Ga. App. 274 (2) (326 SE2d 243) (1985), required the conclusion that the assistant district attorney’s participation in the hearing constituted notice to the district attorney and that the petition filed in this case was, therefore, untimely. We agree.

Decided May 21, 1987

Rehearing denied June 3, 1987.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Joseph J. Drolet, Assistant District Attorneys, for appellant.

John W. Moulton, for appellee.

Appellant’s reliance on O’Neal v. Spencer, 203 Ga. 588 (47 SE2d 646) (1948), and Lang v. State, 168 Ga. App. 693 (4) (310 SE2d 276) (1983), for the proposition that the language of the statute is not mandatory and that, there being no penalty in the statute for noncompliance, the untimeliness of the filing of the petition does not entitle appellee to summary judgment, is misplaced. O’Neal deals not with condemnation, but with a statute regarding appointment of members of a board of education. Lang did concern the same statute, but the language on which appellant relies concerned a totally different action required by the statute. The facts of that case were that the notice and petition were timely. Neither of the cases cited by appellant requires reversal.

Judgment affirmed.

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


text:
    74112.
    GODFREY v. THE STATE.
    (358 SE2d 264)
   Birdsong, Chief Judge.

The appellant Earl Godfrey was convicted by a jury of aggravated sodomy upon his step-grandson. The offense was committed around Thanksgiving when appellant took the boy to his property to look for a Christmas tree. When the boy and his mother returned to their home, that night the mother heard the boy talking in his sleep, which was not an unusual occurrence. She went to his room and saw him tossing and turning, and according to her statement, “He was begging Earl not to pull his pants down and he told Earl not to do it, they were supposed to be . . . hunting for a Christmas tree and he kept taking on for him not to do it.” The child “took on” like this for several nights while the mother waited for him to come to her and tell her what had happened. This talking in his sleep was evidently common, for the mother stated: “[UJsually if [he does] anything ... in the daytime he can tell you about it after he goes to sleep. . . . Like if he was to go fishing or anything, he can tell you all about what he’s done that day during his fishing trip after he goes to sleep.” The mother thought this was normal, because “[her] mother does it, too.” The boy’s mother waited for several nights, and finally decided to talk to him about it. She said: “I asked him about his dreams and he told me. I told him what he was saying in his dreams and he [came] out and told me about it [in detail].” She thereupon consulted a physician, and the children’s and welfare service and law enforcement authorities.

The appellant complains principally of the admission of this mother’s testimony concerning the boy’s sleep-talking. Held:

1. The State contends the mother’s testimony as to the talk uttered by the child in his sleep is not hearsay because it derives its value solely from the credit of the mother as witness to an “act” and does not rely upon the veracity and competency of the sleeping person (OCGA § 24-3-1 (a)); that is to say, the State does not insist upon the alleged sleep utterances themselves as truth or evidence of truth. Instead, the State contends they are one of those rare instances where the conduct of the witness in asking the child about the source of these utterances or about the matters implied in them, becomes material under Teague v. State, 252 Ga. 534, 536 (314 SE2d 910).

This evidence by the mother in this case is not inadmissible as hearsay. Hearsay evidence is that which derives its value not solely from the credit of the witness but rests mainly upon the veracity and competency of other persons. OCGA § 24-3-1. But it does not follow that merely because the declarations are those of another, they are hearsay. See Momon v. State, 249 Ga. 865, 866 (294 SE2d 482).

This evidence is admissible as original evidence under OCGA § 24-3-16, which is specific “indicia of reliability” legislation enacted to facilitate proof and evidence of sexual abuse of children. The statute is an outgrowth of the principles enunciated in Timberlake v. State, 158 Ga. App. 125, 128 (279 SE2d 283). It provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

This statute became effective after the trial of this case. Retrospective application of it to the propriety of the evidence is proper, since it impairs no vested right of the defendant. Thompson v. Wilbert Vault Co., 178 Ga. App. 489, 491 (343 SE2d 515). This criminal defendant has no vested right in the mode of trial of or the remedy for his offense. OCGA § 1-3-5. This legislation involves evidentiary changes and may operate retrospectively. Enger v. Erwin, 245 Ga. 753, 754 (267 SE2d 25).

As to the fact that these declarations were made in the child’s sleep, we find it unnecessary to get caught up in a debate whether dreams and sleep-talk have any relation to reality, and how much. See, e.g., 14 ALR 4th 803, 804, § 2. That is the jury’s question in the particular case if the trial court determines they are admissible. In Sutton v. State, 237 Ga. 418, 419 (228 SE2d 815), the Georgia Supreme Court held admissible, as relevant and material, incriminating statements made by a defendant while he was asleep or in a drunken stupor. And as to whether the man was asleep or drunk, conscious or unconscious, the court held: “Such matters lie within the province of the jury to decide.” The child’s sleep utterances might, in the jury’s estimation, have rather more credibility than less, if it is found they were a “ ‘spontaneous declaration’ . . . made ... in response to a startling event.” If they are “a spontaneous reaction to the event rather than the result of ‘reflective thought,’ ” such declarations may have a “ ‘special trustworthiness.’ ” House v. State, 252 Ga. 409, 410-411 (314 SE2d 195). That case involved the declarations of a man immediately prior to his death, which were admitted as a “spontaneous declaration” exception to the hearsay rule. The declarations of the child are original evidence under § 24-3-16, but the point we make is that the jury might determine that these declarations made in sleep were a spontaneous reaction to the event rather than the result of “reflective thought,” and therefore might be deemed trustworthy to some degree.

A similar situation in a rare case was considered from every evi-dentiary angle by the Minnesota Supreme Court, which finally approved the admission of the evidence by saying: “The real issue is whether this evidence was sufficiently trustworthy. We believe that each case has to be considered on its own. It may be that generally evidence of this sort would be untrustworthy. Here, however, we are not dealing with a conniving person who was out to get someone by faking a bad dream, but with a child who obviously had suffered. The length of time between the last of the defendant’s acts and the first of the sleep statements was only a few days. Finally, and we think importantly, the trial court knew that this was not the only evidence against defendant and that the evidence likely was going to be used primarily for corroborative purposes. If this were the only evidence connecting defendant to the crime, we would say that it was insuffi-dent to support a conviction. But it was just one of a number of items of evidence offered in support of complainant’s testimony. Under all these circumstances, the error, if any, was harmless.” State v. Posten, 302 NW2d 638, 641 (5). Thus the Minnesota court accepted the evidence as corroborative proof of the truth of the sexual charge; in this state it is original evidence under OCGA § 24-3-16, and it is not the only evidence connecting defendant to the crime, for the child was available to testify in the proceedings.

Decided May 19, 1987

Rehearing denied June 3, 1987

William L. Reilly, for appellant.

Roger G. Queen, District Attorney, for appellee.

We agree that “each case has to be considered on its own,” but we conclude the trustworthiness of this evidence is the jury question. The evidence is admissible under § 24-3-16, as a statement by a child under 14, who is available to testify in the proceedings, because the circumstances of the statement carry the requisite sufficient indicia of reliability. These include the circumstances described by the mother in telling how the child would in his sleep commonly repeat the actual events of the day; and that she herself listened to what he was saying and found it so reliable based on her knowledge of him, or such a “sufficient indicia of reliability” that she waited to see if he would come and tell her what had happened, and finally asked him.

2. The evidence was also admissible as an outcry by the child, arguably so near to the event and so free of afterthought, connivance or “reflective thought,” as to be part of the res gestae, and so as to be evidence of the crime itself, and not merely a statement by the child about the crime, as in Division 1. These outcries occurred the night the child returned to his own home. The law is well settled that res gestae outcries are admissible in evidence. (Taylor v. State, 176 Ga. App. 567, 573-574 (336 SE2d 832)) and we are not willing to say that because this one was made while the child was asleep, it was without any basis in fact.

3. Appellant contends there was no evidence of “force” so as to support the conviction for aggravated sodomy. This is not so. The boy’s testimony proves he was forced to endure these acts, and that his step-grandfather Earl Godfrey used force in the commission of the act.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.