text:
    75390.
    ROBERTS v. J.A.T.T. TITLE HOLDING CORPORATION.
    (366 SE2d 297)
   Birdsong, Chief Judge.

J.A.T.T. Title Holding Corporation (JATT), the appellee-defendant, is a non-profit corporation which owns real property located at 5675 Tulane Drive in Atlanta. A building thereon houses a trade school, the Mechanical Trades Institute. This school was established and maintained jointly by the Plumbers and Pipefitters Local Union 72 (Local 72) and its International Union. The school is operated by the Joint Apprenticeship and Training Trust (JATT). The Trust is composed of an eight-member Board of Trustees, consisting of contractors in the plumbing, pipefitting or air conditioning industry, and members of Local 72. Periodically, the Local Joint Apprentice and Training Committee determines when the courses are to be given and the number of applicants which will be accepted in their “apprenticeship program.” Applicants must sign a “Pipe Trades Apprenticeship Form” and serve a four-year apprenticeship in the trade for which they are trained. Each person admitted to the trade school receives 864 hours of instruction (5:30 p.m. to 10:15 p.m.) over the four-year period, and is required to complete 8,000 hours of “on-the-job” training in his chosen trade with plumbers and pipefitters to obtain journeyman status and licensing as a plumber-pipefitter. An apprentice is paid 45 percent of a journeyman’s wage as a starting salary. All graduates of the trade school are not required to, but usually do, become members of Local 72. The school’s four-year curriculum includes: “Math . . . Accident Prevention . . . Use & Care of Tools . . . Drawing & Plan Reading . . . Oxygen-Acetylene Welding . . . Science & Mechanics . . . Basic Electricity . . . General Piping . . . Welding Electric . . . Accident Prevention . . . Heating (I and II) . . . Electricity . . . Refrigeration (I and II) . . . Air Conditioning (I and II) . . . Pipe Drawing & Plan Reading . . . Controls & Instrumentation . . . Mechanical Codes . . . Water Supply . . . Mathematics . . . Drainage . . . Repairing & Service Lab . . . Plumbing Code . . . Plumbing Fixtures & Appliances . . . Codes . . . Gas Installations. . . .”

JATT contends this property is used exclusively for educational purposes. Pursuant to OCGA § 48-5-41 (a): “The following property shall be exempt from all ad valorem property taxes in this state: . . . (6) All buildings erected for and used as a college, incorporated academy, or other seminary of learning. . . .” In 1975 JATT requested and was granted exemption from ad valorem taxation on the basis of their claim that the Mechanical Trades Institute was a “seminary of learning.” In 1982 the tax commissioner reviewed the former determination and denied ad valorem exemption. JATT brought this action seeking exemption and the trial court granted summary judgment to the tax commissioner. JATT appealed to this court and we reversed, holding that the grant of summary judgment was procedurally premature when discovery had not been completed. See J.A.T.T. Title Holding Corp. v. Roberts, 173 Ga. App. 902 (328 SE2d 770). Following remand, discovery was completed and both parties moved for summary judgment. Appellant’s supplementary responses to discovery were not a factor in either party’s motion. Essentially the same facts were before the court but the trial court granted JATT’s motion for summary judgment and denied the tax commissioner’s motion. Commissioner Roberts brings this appeal. Held:

“Taxation ... is the rule, and exemption from taxation the exception. [Cits.] And exceptions are made, not to favor the individual owners of property, but in the advancement of the interests of the whole people. Exemption, being the exception ... to be valid, must be expressed in clear and unambiguous terms, and, when found to exist, the enactment by which it is given will not be enlarged by construction, but, on the contrary, will be strictly construed.” Mundy v. Van Hoose, 104 Ga. 292, 297 (30 SE 783). Hence, at issue is whether the Mechanical Trades Institute is a “seminary of learning . . .” as that term is used in OCGA § 48-5-41.

Our Supreme Court, in Camp v. Fulton County Med. Society, 219 Ga. 602 (135 SE2d 277), where the Fulton County Medical Society owned and operated a building known as “The Academy of Medicine” in which various medically related organizations held meetings and seminars, found that the “petitioner is not operating a college, incorporated academy, or other seminary of learning within the meaning of’ the Code. The same question was posed in American Institute of Indus. Engineers v. Chilivis, 236 Ga. 793 (225 SE2d 308), when the trial court found that plaintiffs membership was composed of approximately 20,000 dues-paying industrial engineers and that the primary purpose of the national headquarters building located in Gwinnett County was “to promote the advancement of industrial engineering by serving the needs of the industrial engineers . . . and that appellant fulfills its primary purpose by distributing technical publications to its membership and through seminars and other educational workshops.” Id. at 793. The trial court found that the appellant did not operate a college, seminary, or other institution of learning and the Supreme Court concluded that although the organization had a very worthy purpose and contributed to the advancement of engineering knowledge, those purposes did not bring it within the statutory exemption from ad valorem taxation. Id. at 794.

However, in Rabun Gap-Nacoochee School v. Thomas, 228 Ga. 231, 233 (184 SE2d 824), the court held that a school whose purpose was “ ‘to educate and train men and women, boys and girls, living in mountain regions and other needy sections ... in agriculture, 'i^nomy and good citizenship . . . under Christian auspices . . .’” was a seminary of learning. Also, in Elder v. Atlanta-Southern Dental College, 183 Ga. 634 (189 SE 254), evidence supported the finding that “the college was chartered as a purely educational institution:” (Id. at 638) for the teaching of dentistry. The issue of whether or not the college operated at a profit, and the trial court’s finding that it was not, was approved on appeal, and the Supreme Court held that “being an institution the physical properties of which are not to be used for purposes of private or corporate profit or income . . . the college building in question here ... is exempted from taxation. ...” Id. at 639.

In these cases, the issue of whether the various organizations came within the definition of “a seminary of learning” was not discussed in depth. Similar tax exemption statutes of other states have spawned a considerable amount of litigation. Analysis of those foreign decisions reveals approval of tax exemption of property of private institutions and organizations for those entities which provide a substantial part of educational training that otherwise would be furnished by publicly supported schools and colleges. Since state taxes are used for support of state schools offering general educational subjects, a private school offering substantially the same curriculum would be entitled to the tax exemption because it is providing general educational subjects that otherwise would have to be taught by the State. State v. Northwestern Vocational Institute, 45 NW2d 653, 655 (Minn. 1951). Hence, generally two things are necessary to qualify a private institution for tax exemption as a seminary of learning: (1) a course of study which fits into the general scheme of education found in state institutions, supported by public taxation, and (2) a course of study that substantially lessens what otherwise would be a governmental function or obligation. Coyne Elec. School v. Paschen, 146 NE2d 73, 77 (Ill. 1957). However, if the general educational function of the private school is merely incidental to activities other than general education, the tax exemption may be denied. NRA Special &c. Fund v. Bd. of County Commrs., 591 P2d 672 (NM 1979).

All institutions designating themselves as “institutes, colleges, or seminaries of learning” do not automatically fall within a tax exempt status. State v. Northwestern Vocational Institute, supra. Thus, where the primary purpose of the education is for a trade or profession, to have such realty declared exempt from taxation on the ground that it is a seminary of learning, there must be a showing that the school offers an education as to which there is enough general academic subject matter to qualify as a reasonable substitute for the program of courses pursued by a student at a comparative level of the public system, though it need not be as broad as that offered by the public educational system, and may feature a particular professional vocation or trade. Graphic Arts &c. Foundation v. State, 59 NW2d 841 (Minn. 1953).

In summary, taxation is the rule, exemption is the exception. Taxation exemptions are to be strictly construed. The basis for tax exemption for private seminaries of learning is the accomplishment for the “whole people” (Mundy, supra at 297) of a “public purpose.” State v. Northwestern Prep. School, 83 NW2d 242, 246 (Minn. 1957). Such “public purpose” to obtain tax exemption status is that of providing a substantial part of general educational training which otherwise would have to be furnished by publicly supported schools and colleges. Id. Accordingly, a substantial portion of the curriculum of a seminary of learning must be similar to the curriculum found in publicly supported schools of learning to qualify for tax exemption. Id.

In the instant case, only a minor portion of the 858 hours of instruction was offered in general education course and from their location in the curriculum, it is evident they were vocationally oriented and only incidental to the main purposes of the curriculum. Those main purposes are: (1) to educate and train an individual in a particular trade, (2) to provide trained apprentices to contractors participating in the school’s program, (3) to provide such apprentices at a stated salary which is 45 percent less than the wage of a journeyman — and these latter two purposes are required by contract before acceptance of the individual in the school, and last but not least (4) to provide for membership in the union for that particular trade, although membership is not mandatory.

The legislative intent for providing tax exemption for “a college, incorporated academy, or other seminary of learning,” is to provide tax relief for private institutions providing general education to the general public. That portion of the curriculum of the Mechanical Trades Institute devoted to general educational purposes was oriented to the trade application of that subject, and was incidental to the primary purpose of training an individual in that trade, and providing trained apprentices to contractors participating in their program, at a controlled wage. Three of these multifaceted purposes for the existence of the Mechanical Trades Institute are outside the one purpose for tax exemption.

Decided January 12, 1988

Rehearing denied February 22, 1988

Marva Jones Brooks, Jeff S. Klein, for appellant.

Charles E. Elrod, Jr., Randall A. Constantine, for appellee.

Hence, we hold the evidence demands, as a matter of law, that the Mechanical Trades Institute is not a “seminary of learning” as that term is used in OCGA § 48-5-41 (a) (6). The judgment of the trial court is reversed and the case is remanded with direction to enter summary judgment for appellant.

Judgment reversed and case remanded with direction.

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


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    75540, 75541.
    WHITLEY v. BANK SOUTH, N. A.; and vice versa.
    (366 SE2d 182)
   Banke, Presiding Judge.

Bank South, N. A., sued Chester A. Whitley and his daughter, Piper Leigh Balius, to recover a deficiency in the principal amount of $1,752.67 allegedly owed by them on an automobile retail installment contract. Mr. Whitley had co-signed the contract with his daughter in order to enable her to obtain financing for the purchase of the automobile in question, which the bank subsequently repossessed. In a second count of the complaint, the bank also sought to recover an alleged “Mastercard Account” indebtedness in the amount of $1,805.67. Mr. Whitley denied being indebted to the bank on either claim and counterclaimed to recover damages for “abusive litigation.”

The complaint was filed on August 4, 1986. A default judgment was entered against Ms. Balius on October 23, 1986, based on her failure to file defensive pleadings in the case. On May 21, 1987, the bank amended its complaint to clarify that its claim on the Mastercard account was asserted only against Ms. Balius and not against Mr. Whitley. Approximately two weeks later, the case proceeded to trial.

At the conclusion of the bank’s evidence, the trial court directed a verdict against the bank with respect to its claim against Whitley for the balance due on the automobile loan, based on its failure to send him a deficiency notice within ten days after the repossession of the vehicle, in compliance with Section 7 of the Motor Vehicle Sales Finance Act. See OCGA § 10-1-36; Ga. L. 1967, pp. 674, 682, § 7. However, the judge declined to submit Whitley’s claim to the jury as well, reasoning that because Whitley had co-signed the retail installment contract and because the loan had not been paid in full, substantial justification had been established by the bank as a matter of law for naming him as a defendant. Having thus, in effect, granted a directed verdict in the bank’s favor on Whitley’s counterclaim without having heard Whitley’s evidence in support thereof, the court, after dismissing the jury, thereupon allowed him to perfect the record by presenting such evidence.

Whitley filed this appeal from the judgment entered against him on his counterclaim, and the bank cross-appealed, enumerating as error the judgment entered in his favor on the complaint. Notwithstanding its cross-appeal, the bank has moved to dismiss the main appeal based on Whitley’s failure to follow the discretionary appeal procedures applicable to appeals from judgments for $2,500 or less. See OCGA § 5-6-35 (a) (6). Held:

1. The bank’s motion to dismiss the appeal is denied. The Supreme Court has held that OCGA § 5-6-35 (a) (6) is applicable only where the appellant is seeking to appeal a money judgment for an amount ranging from 1$ through $2,500, and not, as in this case, where the appellant has sought a money judgment but has obtained no recovery whatever. See City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986). The bank’s reliance on Brown v. Assoc. Fin. Svcs. Corp., 175 Ga. App. 553 (333 SE2d 888) (1985), wherein this court held that the applicability of § 5-6-35 (a) (6) is determined by the amount placed in controversy by the pleadings, is misplaced for two reasons. First, and foremost, that holding was reversed by the Supreme Court on certiorari. See Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457 (339 SE2d 590) (1986). Second, the Court of Appeals decision in Brown would have no applicability to the present case even if it had not been overruled, since the amount which Whitley sought to recover in his counterclaim was not limited to $2,500 or less.

2. Addressing the trial court’s rulings in this case in chronological order, we shall first consider the enumerations of error raised by the bank in its cross-appeal. Initially, the bank contends that the trial court erred in granting a motion by Whitley to open a default created by his failure to file his responsive pleadings in a timely manner.

After the original complaint was filed, the parties entered into a stipulation extending the time for Whitley “to move, answer, or otherwise respond to plaintiffs complaint ... to and through October 17, 1986.” On October 17, 1986, which fell on a Friday, Whitley mailed his answer and counterclaim to the clerk for filing and also mailed a service copy to the bank’s counsel. As a result, service of the answer and counterclaim was legally effected on October 17, 1986 (see OCGA § 9-11-5 (b)), but the filing of the responsive pleadings did not . occur until the next business day, i.e., Monday, October 20, 1986. Some seven months later, on May 22, 1987, the bank moved for the entry of a default judgment against Whitley based on his failure to file his answer on or before October 17, 1986. Whitley thereupon filed a motion to open the default pursuant to OCGA § 9-11-55 (b). The bank contends on appeal that the trial court erred in granting this motion and in declining to enter a default judgment because a “proper case” was not established for the opening of the default within the contemplation of OCGA § 9-11-55 (b). We find this contention to be wholly lacking in merit.

“The rule permitting opening of default is remedial in nature and should be liberally applied (cit), for default judgment is a drastic sanction that should be invoked only in extreme situations. (Cits.) Whenever possible cases should be decided on their merits for default judgment is not favored in law. (Cits.) Our courts have expressed a policy of liberality toward motions for relief from entry of default and have resolved doubts in favor of the party seeking relief so that the case can be heard on its merits. (Cits.) Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. (Cit.)” Ewing v. Johnston, 175 Ga. App. 760, 764 (334 SE2d 703) (1985).

Where, as in the present case, the defendant’s responsive pleadings were timely served but filed a day late; the plaintiff, notwithstanding the timely service of the responsive pleadings, did not assert the default within the 15-day period during which it could have been opened as a matter of right pursuant to OCGA § 9-11-55 (a), but waited instead almost until the eve of trial to do so; the defense asserted in the answer was not only viable but was ultimately determined to warrant the direction of a verdict against the plaintiff; and it has not been suggested how the plaintiff’s ability to present its case could have been prejudiced by the trial court’s action, we cannot say that the trial court abused its discretion in permitting the default to be opened pursuant to the “proper case” theory. See OCGA § 9-11-55 (b). Accord Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400 (314 SE2d 199) (1984). See also Copeland v. Carter, 247 Ga. 542 (277 SE2d 500) (1981).

3. We hold that the court also acted properly in directing a verdict against the bank with respect to its claim against Whitley for the balance alleged to be owing on the automobile loan. Although the bank forwarded separate deficiency notices to Whitley and his daughter by certified mail within ten days after the repossession of the vehicle, it mailed both such notices to the daughter’s address, even through Whitley’s address w;as the one shown on the contract. Thus, Whitley’s notice, at least, was not in compliance with Section 7 of the Motor Vehicle Sales Finance Act, which provides, in pertinent part, as follows: “When any motor vehicle has been repossessed after default in accordance with Part 5 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he forwards by registered or certified mail to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue' a deficiency claim against the buyer.” OCGA § 10-1-36. (Emphasis supplied.)

At the time the retail installment contract was executed, the daughter had been residing at Whitley’s home, but, prior to the repossession, she had moved into her own apartment. The bank maintains that it was justified in sending Whitley’s deficiency notice to the daughter’s new address because an investigator it had hired to locate and repossess the vehicle had reported that location as being “the customer’s home address” and because it was from that address that the vehicle was repossessed. Contending that the mailing of Whitley’s deficiency notice to his daughter’s address constituted “reasonable notification” to him under these circumstances, and further contending that the “reasonable notification” requirement set forth in the U.C.C. provision governing the rights of secured lenders to dispose of collateral after default (OCGA § 11-9-504 (3)) should prevail over the more specific notification requirements set forth in OCGA § 10-1-36, the bank argues that its failure to send Whitley’s deficiency notice to his home address should not result in the defeat of its claim against him for a deficiency judgment.

We reject both prongs of this argument. In the first place, OCGA § 10-1-36 specifically provides that it “is cumulative of Part 5 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer. . . .” See Doughty v. Assoc. Commercial Corp., 152 Ga. App. 575 (263 SE2d 493) (1979). Secondly, even if this case were governed by the “reasonable notification” requirement of the U.C.C. rather than by the more specific notification requirements set forth in OCGA § 10-1-36, we do not believe the facts known to the bank at the time the notices were sent can reasonably be characterized as warranting the conclusion that Whitley had left his home and moved into his daughter’s apartment.

4. This brings us to the issue of whether the trial court erred in granting what was tantamount to a directed verdict against Whitley on his abusive litigation counterclaim. In concluding as a matter of law that the counterclaim was not meritorious, the trial court reasoned that Whitley’s signature on the contract established, as a matter of law, substantial justification for the bank’s action in naming him as co-defendant in the action. However, the evidence presented by Whitley in support of his counterclaim revealed an added dimension to the dispute.

Whitley testified that at some point after the loan went into default, but before the automobile was repossessed, a Ms. Hoover had telephoned him from the bank to advise him that his daughter was three payments behind on the car loan. Whitley testified that he responded to this information by offering to pay off the loan immediately but that Ms. Hoover informed him he would also have to pay off a $1,800 Mastercard indebtedness owed by his daughter, or else “they would file a form D — I forget the number on it [—] and ruin my credit for ten years.” Whitley testified that he thereupon repeated his offer to pay off the car loan but refused to accept responsibility for the Mastercard indebtedness “because I did not know about it and I did not sign for it. . . .” Whitley stated that Ms. Hoover again rejected this offer, insisting that both loans be paid off that afternoon.

Testifying on behalf of the bank, Ms. Hoover denied that she had threatened to ruin Mr. Whitley’s credit for ten years, stating that she would never threaten to damage a person’s credit rating in an attempt to collect a loan, though conceding that she might, as a courtesy, warn the person that “[i]f the account would go to recovery, it would be reported to their credit bureau.” It was shown, however, that in previous deposition testimony Ms. Hoover had conceded the possibility that she might have made all of the statements attributed to her by Whitley.

In the second count of its original complaint, i.e., the count seeking to recover the balance allegedly due on the Mastercard account, the bank had incorporated by reference an earlier paragraph of the complaint alleging that Ms. Balius was subject to the jurisdiction of the court and had then simply alleged as follows: “Defendant owes plaintiff $1,805.67 on an account, the same being Mastercard account.” The bank contends on appeal that it was unambiguously clear from this language that the claim on the Mastercard account was asserted solely against Ms. Balius and not against Mr. Whitley. However, the bank’s position in this regard is at odds with its own conduct in amending the complaint on the eve of trial to clarify that only Ms. Balius was sought to be held liable on Count 2. Moreover, the bank officer who had authorized the filing of the suit testified in her deposition that she, at least, interpreted the original complaint as seeking a recovery against both defendants on both counts. (This witness further acknowledged during the course of her deposition that the bank had not in fact had any reason to believe that Whitley had moved from the address set forth on the retail installment contract at the time it mailed the deficiency notices.) Clearly, Whitley had every reason to believe, under the circumstances, that he was being sued for the Mastercard indebtedness as well as for the deficiency on the automobile loan, which he had previously offered to pay in full.

Decided February 3, 1988

Rehearing denied February 22, 1988

Walter H. Beckham III, for appellant.

Susan L. Howick, for appellee.

We believe a jury could reasonably infer from the foregoing evidence that, by pursuing the present action against Whitley, the bank had sought to harass or intimidate him into paying one or more debts for which he had no arguable legal responsibility. A recovery of damages for “substantially frivolous, substantially groundless, or substantially vexatious” litigation would clearly be authorized under such circumstances pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), as well as OCGA § 9-15-14. We consequently hold that the trial court erred in refusing to submit the abusive litigation counterclaim to the jury.

Judgment affirmed in Case No. 75541. Judgment reversed in Case No. 75540.

Carley and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    75568.
    ESCO v. JACKSON et al.
    (366 SE2d 309)
   Birdsong, Chief Judge.

This is an appeal from the order and alleged judgment of the State Court of Cobb County granting to defendant Stephen Michael Jackson a stay of proceedings pursuant to the Soldiers’ & Sailors’ Civil Relief Act of 1940 (50 USC App. § 521) and from all other appealable orders, including but not limited to, the order granting defendant Harry G. Smith’s motion for summary judgment. Held:

1. Appellant contends that the trial court erred in granting movant’s motion for summary judgment. Appellee Stephen Michael Jackson was the grandson of Harry G. Smith. A few months prior to the automobile accident that is the basis for this suit, Mr. Smith commenced loaning one of his automobiles to his grandson whenever the latter could not otherwise obtain a ride to school. It is uncontested that the grandfather was paying the private school tuition of his grandson, and that the grandson kept some clothing at the home of his grandfather. Appellant brought suit for damages sustained when appellant’s vehicle was struck by the automobile owned by movant but driven by his grandson, Jackson. Appellant has styled his cause of action against movant on an agency theory relying on the Georgia family purpose doctrine. See generally Hubert v. Harpe, 181 Ga. 168 (182 SE 167).

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531); see Dickson v. Dickson, 238 Ga. 672, 675 (235 SE2d 479), citing Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). However, assertions of fact contained in the briefs of the parties do not, standing alone, constitute competent evidence for the resolution of a summary judgment issue. See Coweta Bonding Co. v. Carter, 230 Ga. 585, 586 (1) (198 SE2d 281); Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438).

For reasons hereinafter discussed, we find that the trial court did not err in granting movant’s motion for summary judgment. Mere ownership of an automobile does not create liability. Finnocchio v. Lunsford, 129 Ga. App. 694 (201 SE2d 1). As a general rule, in order for the “family purpose” or so-called “family car” doctrine to be applicable, “it must appear that the father, or head of the household, furnished and maintained the automobile for the pleasure, comfort and convenience of his family, so as to bring the operation of the automobile by a member of the family within the scope of the father’s or household head’s ‘business’ [of family purpose].” (Emphasis supplied.) Robinson v. Hartley, 98 Ga. App. 765, 766 (106 SE2d 861). However, the driver need not be a child of the owner and can be related to the owner to a lesser degree, provided he is in fact a member of the owner’s household. Compare Robinson v. Hartley, supra at 767 where the nephew had been raised by the uncle and was considered a family member with Samples v. Shaw, 47 Ga. App. 337, 339 (170 SE 389) where the nephew was not a member of the family; see also Cabral v. White, 181 Ga. App. 816 (354 SE2d 162) (“family purpose car doctrine” inapplicable where minor driver was not a member of the owner’s family).

At least one case has held that the “family purpose” doctrine can be applied to a situation where a father furnished an automobile for his minor daughter’s use, benefit and pleasure, even though the girl resided with her mother from whom the father was divorced. However, the father was shown to have bought the car especially for his daughter, and the father testified that he was the head of the household and recognized the girl as his daughter even though the court had awarded her custody to the mother. Alexander v. Kendrick, 134 Ga. App. 249 (213 SE2d 911). The facts of the case at bar clearly are distinguishable from Alexander. The evidence of record reflects that at the time of the accident, the grandson was living in the household of his mother and was her family member. Although the grandfather did provide some financial support for his grandson’s education, did allow the boy to stay in his home on certain occasions when his mother was not home, did allow the boy to leave some clothing in the grandparents’ home as a matter of accommodation, did loan his automobile to the grandson for the latter to drive to school when no other transportation means were available, and did allow both the mother and son to live in the grandparents’ household at an earlier point in time following the mother’s divorce, it is equally clear and indisputable that at the time of the accident the grandson was not a member of the grandfather’s immediate family nor was the grandfather the head of the grandson’s household.

The only evidence of record which possibly could have created an inference that the grandson was a member of his grandfather’s household at the time of the accident is found in the appellant’s affidavit and the grandson’s deposition. In his deposition, appellee Jackson responded, “Yes, Sir” to a question posed by appellant’s attorney as to whether the address which he gave the police at the time of the accident was that of his grandparents. However, immediately following this answer and in response to the specific question of whether he had moved to his grandfather’s house before the date of the accident, appellee Jackson explained that he and his mother had a “falling out” and that he intended to move in with his grandparents shortly, so he “gave the police their address and I moved in in April” (several months after the accident). In Marques v. Rose, 105 Ga. App. 133, 138 (123 SE2d 412), we held that “[i]t is a custom of general practice to allow or even require a witness to answer questions categorically by answering ‘yes’ or ‘no,’ and thereafter, allow the witness to explain his answer. [Cits.] ‘The general statement of a witness can have no greater force or effect than his immediately ensuing explanation of the meaning of such statement.’ ” Therefore, we concluded “that the witness’ answers to counsel’s questions . . . are not conflicting so as to make a jury issue.” In the case at bar, while the appellee Jackson did answer “yes” to the question as to whether he had given the police his grandparents’ address as his own at the time of the accident, he immediately thereafter explained his answer to the question. His explanation shows that he was not a member of his grandfather’s family at the time of the accident, but that he was then living in his mother’s household. As in Marques, we find that the testimony contained in appellee Jackson’s deposition is not conflicting or contradictory within the meaning of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) and cases therein cited.

The affidavit of appellant, both on its face and in conjunction with any other evidence of record, fails to raise any genuine issue regarding whether appellee Jackson was a member of his grandfather’s household at the time of the accident. Appellant’s affidavit in part recounts a telephone call that occurred “[tjhe second or third day after the accident” between the appellant and the grandparents of appellee Jackson. (Emphasis supplied.) During this conversation, the grandparents stated that appellee Jackson was like their own child and that he “lived with the grandparents because his parents were divorced.” The affidavit fails either to identify the grandparents by name or to provide a date certain when appellee Jackson moved into the grandparents’ home. Considering that the affidavit admits that this call took place two or three days after the accident, we find that in this case it is not probative of the issue of when appellee Jackson became a member of the grandfather Harry G. Smith’s household. See Withrow Timber Co. v. Blackburn, 244 Ga. 549, 553 (261 SE2d 361) (“ ‘ “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists” ’ ”); Dozier v. Wallace, 169 Ga. App. 126, 130 (311 SE2d 839). In view of the uncontradicted and unimpeached evidence produced by appellee Jackson and his grandfather, Harry G. Smith, in support of Smith’s motion for summary judgment, the record demonstrates no genuine issue of material fact as to whether appellee Jackson was a member of Smith’s household at the time of the accident. See Dozier v. Wallace, supra at 130; see also McCray v. Hunter, 157 Ga. App. 509, 512 (277 SE2d 795) (evidence clearly and palpably shows the jury could draw but one conclusion).

The trial court did not err in granting summary judgment as to defendant Harry G. Smith.

2. Appellant’s second assignment of error is that the trial court erred in granting appellee Jackson’s motion for a stay of proceedings pursuant to the Soldiers’ & Sailors’ Civil Relief Act of 1940 (50 USCA App. § 521).

In support of his motion for stay of proceedings, appellee Jackson avers that he joined the United States Navy on the fifth day of August 1986, and that, at the time of the affidavit, he was in the Naval Hospital Corps School at Great Lakes, Illinois. On March 25, 1987, the trial judge granted the motion for a stay of proceedings through the fifth day of August 1988.

Section 521 of 50 USCA App. pertinently provides that when a member in the military service applies for a stay of proceedings, the proceedings shall be stayed, “unless, in the opinion of the court, the ability of . . . the defendant to conduct his defense is not materially affected by reason of his military service.” (Emphasis supplied.) Appellant asserts that the trial judge abused his discretion by granting the stay when appellee Jackson’s affidavit lacked any showing that the servicemember “was unable to leave his duty station for the purpose of his attorney to prepare his defense and/or to attend trial,” especially in view of appellant’s response to said stay wherein appellant agreed to limit any judgment to the amount of the liability insurance provided to appellee Jackson. Implicit in appellant’s argument is the assertion that the servicemember bears the burden of proof in establishing that his ability to conduct his defense was not materially affected by reason of his military service. In the seminal case of Gates v. Gates, 197 Ga. 11 (2) (28 SE2d 108), the court held that the Act places no burden upon anyone to produce such evidence; the judge has full power to make such inquiry as he may feel the justice of the case demands; the language of the Act does not authorize a construction which would place upon the servicemember the burden of proving that his ability to prosecute or defend the action is materially impaired; and, a servicemember “might well rest his request for a stay upon the bare statement that he is at the time actively in the military service, and, with nothing more appearing as evidence touching the question of his impairment by virtue of his service, the trial judge would be required, as a matter of law, to grant the stay.” It was further held that when an applicant servicemember undertakes by his verified application to show impairment by alleging conclusions to that effect, this evidence immediately becomes subject to the rule that it must be construed most strongly against him, and a judge can find from the absence of specific facts, such as the military service’s denial of the servicemember’s leave request, that such facts did not exist or else would be alleged. See also Boothe v. Henrietta Egleston Hosp., 168 Ga. App. 352 (308 SE2d 844).

The case of Underhill v. Barnes, 161 Ga. App. 776 (2) (288 SE2d 905), cited by appellant, involves a fact situation where servicemember applicant attempted in his stay application to show that his defense would be impaired by virtue of his military service. In the case at bar, defendant Jackson only asserted in his affidavit the date when he joined the United States Navy, the fact that he was currently a member of said service, his current duty assignment at the Naval Hospital Corps School, and its geographic location, and his military identification number (social security number). Thus, this case clearly is distinguishable from Underhill. We find no abuse of discretion by the trial judge in granting the motion for stay of proceedings. See Vlasz v. Schweikhardt, 178 Ga. App. 512 (1) (343 SE2d 749).

Assuming, however, that appellee Jackson had undertaken to show that his ability to defend was materially affected and, thereby, to subject his stay application to the type of analysis authorized by the Gates exception and Underhill, our resolution of this issue would not be altered. The trial judge could conclude that the evidence was insufficient to establish that the applicant’s ability to defend himself was not materially affected by his military service, as he could infer that a sailor attending the Naval Hospital Corps School would not be reasonably available to assist in the conduct of his defense. Moreover, once servicemember’s status as a resident attending naval school was established, such status could be presumed to continue until the contrary was established. See OCGA § 24-4-21; Strother Ford v. First Nat. Bank, 132 Ga. App. 268, 270 (208 SE2d 25) (presumption of continuity: a status when proved to exist will be presumed to have continued to exist; until evidence is introduced to the contrary, it is presumed a person has not changed his residence or domicile) and cases cited therein.

Decided January 22, 1988

Rehearing denied February 22, 1988.

C. Lawrence Jewett, Jr., for appellant.

Lynn A. Downey, Russell B. Davis, for appellees.

Accordingly, we find this assignment of error is without merit.

Judgment affirmed.

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


author: Pope, Judge.

text:
    75778.
    In the Interest of B. N. D.
    (366 SE2d 187)
   Pope, Judge.

Appellant, a juvenile, was adjudicated delinquent on the charges of aggravated assault, obscene or abusive language, theft by receiving stolen property and driving without a license. Appellant was placed on probation “until further order, conditions being that he: (1) obey the law; (2) obey his grandmother; (3) cooperate with his probation officer; and (4) attend school regularly and abide by all school rules and regulations.” Pursuant to a petition filed March 13, 1987, appellant was deemed to have violated his probation based on his failure to observe conditions two, three and four. Subsequent petitions sought findings of delinquency and revocation of probation by reason of the commission of various offenses, including shoplifting, reckless driving, attempting to elude police, theft by receiving stolen property and criminal damage to property in the second degree. By orders dated May 22, 1987 and July 14, 1987, the court found appellant delinquent in that he committed the offenses of shoplifting, reckless driving, theft by receiving stolen property and criminal damage to property in the second degree, again revoked appellant’s probation, and ordered him committed to the custody of the Director of the Child Treatment Center “pending consideration for designated felony sentencing” (see OCGA § 15-11-37) based on the original aggravated assault charge. Following the designated felony hearing, the court placed appellant in the custody of the Division of Youth Services for five years, and ordered that appellant be confined to a Youth Development Center for not less than 12 nor more than 18 months. Appellant appeals from this latest judgment and disposition.

Appellant argues that the imposition of confinement under the designated felony provisions for the offense of aggravated assault constitutes a multiple conviction for the same offense in violation of the Double Jeopardy Clause because appellant had already been sentenced to probation for that offense. Similarly, appellant also argues that such a use of OCGA § 15-11-37 was not intended by the legislature.

“(T)he Double Jeopardy Clause provides three related protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. United States v. Wilson, 420 U. S. 332 (95 SC 1013, 43 LE2d 232) [(1975)].” (Punctuation omitted.) Smith v. State, 171 Ga. App. 279, 280 (319 SE2d 113) (1984). However, “[t]he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. [There have been] established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, or even for life, yet these sanctions have not been considered to be violative of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment.” United States v. DiFrancesco, 449 U. S. 117, 137 (101 SC 426, 66 LE2d 328) (1980). “ ‘Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.’ ” Smith v. State, supra at 280, citing Morrissey v. Brewer, 408 U. S. 471, 480 (92 SC 2593, 33 LE2d 484) (1972). “If the probation is revoked, the imprisonment is not imposition of confinement but revocation of his conditional liberty permitted by his probation.” Smith v. State, supra at 281. Similarly, it has also been held that it is permissible to subject probation violators to the sentence which might have originally been imposed upon them in lieu of probation, or to impose a greater sentence than that originally given. Williams v. Wainwright, 493 FSupp. 153 (S.D. Fla. 1980), aff'd, 650 F2d 58 (5th Cir. 1981).

We also decline to find that the imposition of probation constituted an implied acquittal of a greater sentence under the particular facts of the present case. In this regard we also note that the original order specifically provided that appellant was placed on probation “until further order.” OCGA § 15-11-42 (b), which allows the juvenile court to modify or vacate orders provides that “(a)n order granting probation to a child found to be delinquent or unruly may be revoked on the ground that the conditions of probation have not been observed.” Lastly, the record in the case at bar also shows that the proper procedures, including notice and an opportunity to be heard, were followed in both petitioning the court for revocation of appellant’s probation and conducting the designated felony hearing. Cf. In re B. C., 169 Ga. App. 200 (311 SE2d 857) (1983). Accordingly, we find neither a constitutional, statutory nor procedural impediment to the imposition of restrictive custody pursuant to OCGA § 15-11-37 following the revocation of appellant’s probation in the present case.

Decided February 3, 1988

Rehearing denied February 22, 1988

Mitchell Rodriquez, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, George J. Robinson, Jr., Richard E. Hicks, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    75912.
    AARON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (366 SE2d 355)
   Banke, Presiding Judge.

This is an appeal from a judgment entered on a jury verdict in favor of the plaintiff/appellee, Georgia Farm Bureau Mutual Insurance Company (“Farm Bureau”), in a declaratory judgment action brought to determine its obligation to defend a personal injury action.

George Mullins and his wife brought suit against Richard Aaron (now deceased) to recover for certain injuries Mullins had allegedly sustained as a result of an aggravated assault committed by Aaron. Aaron called upon Farm Bureau to defend the suit, claiming coverage under his homeowner’s liability insurance policy as well as under a farm owner’s liability policy which insured the premises where the incident is alleged to have occurred. Thereafter, Farm Bureau brought the present declaratory judgment action seeking a determination that it had no obligation in the matter, based on certain policy language excluding coverage for bodily injury or property damage “expected or intended by the insured” or “caused intentionally by any insured over twelve years old.” The declaratory judgment action was tried before a jury, which returned a verdict in favor of Farm Bureau.

Aaron had died prior to this trial, but his version of events was introduced by Farm Bureau in the form of a transcript of his testimony from the criminal proceeding, even though that testimony was, in some respects, favorable to the appellants. Aaron had testified that at approximately 5:30 p.m. on the day in question, he drove to the home of Thomas Daughtry, his wife’s deceased father, where he observed a Lincoln Continental automobile parked in the driveway with its hood raised. He stated that he saw a man, later identified as Mullins, standing in front of the vehicle, as well as another individual, later identified as Eddie Phillips, holding a quart of beer and “relieving himself” on the Daughtry property. Aaron maintained that he had never seen either man before and that he consequently became fearful for his safety and that of his wife, who was alone in the house at the time. He said that he got out of his car and asked Phillips “what the hell he was doing,” whereupon Mullins got into the Lincoln, came out again “with something I thought . . . was [a] knife and start[ed] toward me.” Aaron said he retrieved a pistol from his car at this time and began to fire. He stated, “I didn’t know I had hit the man. I had no intention of hitting the man. The only thing I wanted him to do was leave there. . . .” Aaron testified that Mullins then got back into the Lincoln, drove down the road to a neighbor’s residence, and stopped, whereupon he (Aaron) realized that something had happened and asked his wife to phone the sheriff.

Aaron’s testimony was in conflict with that of a witness named Thomas Mock, who stated that the shooting occurred in front of his mother’s home, which was located “up the hill” from the Daughtry property. Mock testified that he had been inside a camper in his mother’s yard when he heard gunfire, came outside, and saw Aaron’s car and a Lincoln Continental parked near his mother’s driveway. He stated that he observed Aaron fire a pistol “at least four times” at a man who was running across the Mock property, following which Aaron got into his car and backed it down the road. Mock testified that he heard Mullins, who was inside the Continental, yelling for help at this time and complaining that he had been shot. When asked in what direction he had observed Aaron fire the pistol, Mock testified, “They looked to me like he was trying to hit him ... he was shooting wild, I mean he was just shooting.” Held:

The appellants’ sole enumeration of error is directed to the denial of their motion for directed verdict. In a civil case, “[t]he standard of appellate review of the trial court’s denial of a motion for a directed verdict is the ‘any evidence’ standard. [Cit.]” United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329, 330 (304 SE2d 131) (1983). While Farm Bureau was prevented by OCGA § 24-9-81 from impeaching Aaron, whose unfavorable testimony it had voluntarily offered, it was not bound by his testimony and was consequently at liberty to introduce conflicting evidence, which it did in the form of Mock’s testimony. “ ‘The rule is well established that neither the plaintiff’s recovery nor his right to prevail as to a particular issue is defeated because there is a material conflict in the testimony of his witnesses and the version given by some of them does not support his cause or contention. [Cits.]’ ‘A party introducing a witness is not bound by his testimony and is not estopped from contending before the jury that the truth is otherwise than as testified by the witness.’ [Cit.]” Jem Patents, Inc. v. Frost, 156 Ga. App. 311, 312 (274 SE2d 707) (1980).

Decided February 9, 1988

Rehearing denied February 22, 1988

Charles M. Jones, Griffin B. Bell, Jr., G. Brinson Williams, Jr., for appellants.

Millard B. Shepherd, Jr., for appellee.

Assuming arguendo that Aaron’s own testimony would not have supported the jury’s verdict in the present case, Mock’s testimony clearly did. “Since there was some evidence supporting appellee’s assertions [that the shooting was intentional], disputed issues were created which were properly submitted to the jury. [Cits.]” United Fed. Savings &c. Assn. v. Connell, supra at 330.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.

       Aaron was tried and convicted of aggravated assault as a result of the incident, but his conviction was later reversed by this court in Aaron v. State, 172 Ga. App. 700 (324 SE2d 564) (1984), and he died before a retrial could be held.


author: Sognier, Judge.

text:
    75293.
    CARPENTER v. PARSONS.
    (366 SE2d 367)
   Sognier, Judge.

M. C. Carpenter instituted action against Ishmael D. Parsons, alleging fraud and breach of a contract giving Carpenter an option to purchase real estate owned by Parsons. The case was tried before a jury, and at the close of Carpenter’s evidence the trial court granted Parson’s motion for a directed verdict. Carpenter’s motion for a new trial was denied, and he appeals.

The record reveals the parties entered into a contract in August 1984 giving appellant the option to purchase from appellee a lot, 80 feet by 200 feet, “more or less,” for $1,600, which option could be exercised within one year. Appellant paid $150 as a down payment, and made one subsequent payment of $80 in October 1984. In April 1985, without appellant’s knowledge, appellee sold the lot in question to third parties, giving them a warranty deed. The lot was then reconveyed to appellee by the third parties that same month, after appellant learned of the sale and complained to appellee.

1. Appellee’s motion for contempt is denied.

2. Appellant contends, on several grounds, that the trial court erred by granting appellee’s motion for a directed verdict. A directed verdict is proper “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a).

(a) We find no merit in appellant’s contention that the jury should have been allowed to decide whether the parties’ agreement was an option contract or an installment purchase contract. Pretermitting the question whether this would have been a proper question for jury determination had the evidence been in conflict, we find that no question remained for jury consideration on this issue. Although the document evidencing the parties’ agreement was never tendered or admitted into evidence, both parties admitted in the proceedings below that an option contract was intended, and appellant referred to it as such in his sworn testimony. There was thus no conflict in the evidence as to this issue.

(b) Appellant asserts the trial court erred by granting appellee’s motion for a directed verdict because the question whether appellee breached the contract, either by his lack of ownership of the lot during twenty days in April 1985, or by his inability to convey to appellant an entire 80 feet by 200 feet lot, required resolution by the jury. We do not agree, since resolution of these issues is not necessary. “A party may contract to convey property not then owned by him.” Williams v. Bell, 126 Ga. App. 432, 434 (1) (190 SE2d 818) (1972). It is only if he is not able to convey the property on the consummation date that he will be liable in damages for breach. Id. Similarly, any discrepancy in the dimensions of the lot would have been material only if appellant had been ready, willing, and able to go forward with the contract. In an option contract, it is necessary, in order to establish a breach on the part of the seller, that the purchaser tender the purchase price and request conveyance of the land to him, and that the seller fail to comply. Moore v. Hughey, 133 Ga. App. 901, 902 (212 SE2d 503) (1975). In the case sub judice, it is undisputed that appellant never tendered the full purchase price, nor did he request or demand that appellee convey the lot to him at any time during the period covered by the option contract. Thus appellant did not establish default on the part of appellee, and the trial court did not err by granting a directed verdict in favor of appellee on the issue of breach of contract.

(c) Appellant next asserts the trial court erred by granting a directed verdict to appellee on the issue of fraud, because the evidence was in conflict as to whether appellee knowingly misrepresented the dimensions of the lot. However, “[o]ne cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. [Cits.] Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. [Cits.]” Hubert v. Beale Roofing, 158 Ga. App. 145, 146-147 (279 SE2d 336) (1981). It is uncontroverted in the case sub judice that the transaction was at arm’s length, and that appellant was free to go onto the land and measure it himself. In fact, appellant did so, but only after the contract had been executed. No reason appears why appellant could not have done so before agreeing to the contract. Thus, appellant’s claim of fraud is not valid, and the trial court did not err by granting appellee’s motion for a directed verdict on this issue.

3. Appellant maintains the trial court erred by excluding certain transcripts of telephone conversations, transcribed by appellant, although the court permitted appellee to refer to the transcripts in cross-examining appellant concerning the conversations. We find no merit in this enumeration. The typed transcripts were excluded because a proper foundation had not been laid by appellant for their admission. In addition to the foundation necessary for the admission of recordings of telephone conversations, see Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (3) (88 SE2d 167) (1955), since appellant was not introducing the recordings themselves it was necessary that appellant establish a foundation for the introduction of secondary evidence. OCGA § 24-5-2. This appellant failed to do. Further, appellant did not object to appellee’s questions referring to the transcript, and “ ‘[g] rounds which may be considered on appeal are limited to those which were urged before the trial court.’ [Cit.]” Long v. Marion, 182 Ga. App. 361, 362-363 (1) (355 SE2d 711) (1987).

4. Appellant claims the trial court erred by denying his motion for a new trial. The motion was made on the grounds of newly discovered evidence, but appellant’s pleadings fail to disclose any such evidence. As the record contains no transcript of the hearing held on appellant’s motion for a new trial, appellant has failed to carry his burden of showing error in the trial court’s ruling, and we must presume that it was correct. See Georgia Hospitality &c. Assn. v. Harrison Advertising, 181 Ga. App. 163 (351 SE2d 489) (1986).

5. We have carefully examined the entire record, and we find no merit in appellant’s remaining enumerations of error.

Judgment affirmed.

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

Decided February 22, 1988.

M. C. Carpenter, pro se.

R. Scott Cunningham, for appellee.


author: Deen, Presiding Judge.

text:
    75974.
    LOCKHART v. THE STATE.
    (366 SE2d 371)
   Deen, Presiding Judge.

The appellant, Sammie Lockhart, was tried and convicted of aggravated assault on a police officer, stemming from his escape from the Sumter County Sheriffs Department on May 15, 1986. (He pleaded guilty to a charge of escape.) While awaiting being processed on a shoplifting charge, Lockhart was shackled to a couch with leg irons. When the jailer went back to the holding cells to check on another prisoner, Lockhart pried off the leg cuff with a screwdriver and escaped. The jailer returned to the room just in time to see the last of Lockhart go out the window, and he chased Lockhart down outside. Lockhart pulled out a small knife from his shoe and slashed at the jailer but only managed to scratch him. Lockhart ran off but was apprehended later.

At trial, the prosecutor displayed to the jailer a pair of hand cuffs and asked him if the leg cuffs that had been used on Lockhart was similar. The jailer explained that the leg cuffs were similar, but larger and stronger. Lockhart’s sole contention on appeal is that this testimony was inadmissible, since the prosecutor’s inquiry about cuff comparisons necessarily required an expert opinion and the jailer had not been qualified as an expert. Efforts to essentially link or equate similarities of hand and leg cuffs, even by an expert, are eventually ever-evolving esoterical equations, “ ‘like trying to nail a jellyfish to the wall.’ ” Sewell v. Eubanks, 181 Ga. App. 545 (352 SE2d 802) (1987). These expressions enumerated as error were “not essential to the issues submitted to the jury, and the admission of this testimony was harmless to defendant’s case.” Wisdom v. State, 234 Ga. 650, 652 (217 SE2d 244) (1975). Furthermore, as noted by Judge Ira Carlisle, the argument “is too indefinite to present any question for consideration.” Murphy v. State, 88 Ga. App. 30 (75 SE2d 844) (1953).

Judgment affirmed.

Car ley and Sognier, JJ., concur in the judg merit only.

Decided February 22, 1988.

John V. Harper, for appellant.

John R. Parks, District Attorney, Barbara Becraft, Assistant District Attorney, for appellee.

       Chief Justice H. E. Nichols has said of him: “I sincerely believe that he could recite from memory almost the entire Ga. Ann. Code. He was blessed with the greatest power of recall I have ever known.” (Emphasis supplied.) In Memoriam, 130 Ga. App. XXIX, XL.


author: Deen, Presiding Judge. Sognier, Judge,

text:
    75925.
    HOWARD v. THE STATE.
    (366 SE2d 369)
   Deen, Presiding Judge.

Robert Howard appeals from his convictions of burglary, possession of a firearm by a convicted felon, carrying a concealed weapon and carrying a pistol without a license. He asserts only the general grounds.

The evidence showed that a witness observed appellant walking along the MARTA tracks carrying a large red bag. Another witness saw him board a MARTA train. When the police and a MARTA supervisor entered the train, appellant exited the train and ran. He was apprehended and searched. A pistol and various other items including some jewelry were discovered in the bag. A screwdriver was found on his person. A witness whose home had recently been burglarized identified the items in the bag as belonging to her and they were returned to her by the police.

Appellant claims that he was walking down the street when a man with a red bag who was being chased by a woman ran past him and towards some bushes. The woman turned around when the man disappeared into the bushes. When the man came out of the bushes, he did not have the bag so appellant claims that he climbed over a MARTA fence, retrieved it, and walked down the MARTA tracks and boarded a train when it stopped. He ran away when he saw police officers pointing at him.

Bankston v. State, 165 Ga. App. 184 (299 SE2d 85) (1983), was a two-judge case (Judge Carley concurring in the judgment only). While this case originally had no precedential value, the Supreme Court, in Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983), reversed only one burglary charge. In the other burglary charge, the conviction was affirmed, thus providing precedential value as to all convictions in our Bankston case other than the one burglary charge reversed, notwithstanding the one concurrence in the judgment only. In the burglary charge that was affirmed, there was evidence in addition to recent unexplained possession of stolen goods. There, appellant was fleeing from the site, he behaved nervously, and made a replacement loan on equipment. The court there held that this, in its totality, was sufficient to support the conviction.

In the instant case, in addition to the recent unexplained possession of the stolen goods, appellant acted scared and ran. Further, he was operating under the aliases of “Derrick Carmichael,” sometimes “Ken Quinn Davis,” at other times “Michael Snell,” and possibly “Tommy Coletón.” The burglar tool of a screwdriver on his person and the gloves that were found in the bag that he carried, which, as in Rann v. State, 183 Ga. App. 234, 235 (358 SE2d 644) (1987), “painted the profile of a professional burglar caught with the tools and fruits of his illicit labors.” Appellant testified with regard to his acting nervous and running as follows: “As the train approached the MARTA Station, when it was approaching the MARTA Station and stopped, the doors swing open. Two polices or three, maybe four, it was a group of them, they got on the train and pointed at me. They scared me because I didn’t, you know, I didn’t been too long got out of prison. I know that I haven’t did nothing wrong and I don’t want to go to jail for being on the track. So I ran.” Here, the evidence, in its totality, was enough to support the conviction.

The evidence as presented at trial, when viewed in favor of the prosecution, was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The credibility of a witness is a question solely for the trier of fact (in this instance, the judge who conducted the bench trial). Barnes v. State, 181 Ga. App. 581 (353 SE2d 76) (1987).

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent to that portion of the majority opinion which affirms appellant’s conviction of burglary. The only evidence connecting appellant to the burglary was the fact that he was found in possession of property taken recently in the burglary. “Although there is still validity to the long-established rule that proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the burglary of the goods, proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary.” (Emphasis supplied.) Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). Thus, such evidence only gives rise to an inference that the defendant committed the burglary; however, if the only evidence supporting the conviction is the evidence giving rise to the inference (recent possession), then under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), such evidence must establish the offense beyond a reasonable doubt in order to be sufficient to support the conviction. Id. at 731; Williamson v. State, 248 Ga. 47, 56 (1) (c) (281 SE2d 512) (1981). In my opinion, the evidence does not establish appellant’s guilt of burglary beyond a reasonable doubt. While the presumption or inference here would meet the “more-likely-than-not” test (since appellant possessed stolen goods, it was more likely than not that he stole them), set forth in Leary v. United States, 395 U. S. 6 (89 SC 1532, 23 LE2d 57), if the presumption satisfied only the Leary test, the jury, “relying on this evidence alone, would be permitted to convict the defendant without finding that he was guilty beyond a reasonable doubt.” Williamson, supra. Since the only evidence that appellant committed the burglary was the fact that he was in possession of recently stolen property, the evidence is not sufficient to sustain his conviction of burglary under the standard of proof required by Jackson v. Virginia, supra. Id.; Bankston, supra.

Decided February 22, 1988.

Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Assistant District Attorneys, for appellee.

Accordingly, I would reverse appellant’s conviction of burglary and affirm his conviction of all other offenses.


text:
    75907.
    MAURER v. CHYATTE et al.
    (367 SE2d 132)
   Deen, Presiding Judge.

This is an appeal from a judgment granting appellee’s motion to dismiss an appeal for unreasonable and inexcusable delay in the filing of the transcript. After a hearing on the motion, the trial court made findings of fact and conclusions of law and ordered the appeal dismissed. Maurer now appeals, enumerating as error the trial court’s alleged expansion of the hearing to matters beyond those contained in the motion; his alleged ex parte investigation of the facts of the case; allegedly passing judgment on the court reporter; application of an improper legal theory; and making findings and conclusions allegedly unsupported by the evidence. Held:

Scrutiny of the entire record reveals no abuse of discretion or other impropriety on the part of the trial court. The record supports the trial court’s findings of fact and conclusions of law. We find no merit in any of appellant’s enumerations of error.

Decided February 22, 1988.

Glenville Haldi, for appellant.

J. Kenneth Moorman, for appellees.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    75181.
    ADVANCED COMPUTER SALES, INC. v. SIZEMORE.
    (366 SE2d 303)
   Birdsong, Chief Judge.

Advanced Computer Sales appeals from a jury verdict and judgment awarding $5,752.44 to James Sizemore d/b/a Sizemore Bros. Plumbing & Heating Contractors based on Sizemore’s revocation of its purchase of computer hardware and software and suit for damages. Held:

1. Appellant contends it was entitled to a directed verdict, and the jury verdict was unsupported, on the basis of an express disclaimer of any warranty, express or implied, in the “Equipment Lease” entered into by the parties. Furthermore, appellant contends the contract was a lease agreement and not a contract of sale, and therefore was not subject to remedy by revocation.

We reject these contentions. The jury was authorized to conclude the agreement was a contract of sale and not a lease, despite its being called a lease. See Redfern Meats v. Hertz Corp., 134 Ga. App. 381 (215 SE2d 10). The Uniform Commercial Code at OCGA § 11-2-106 (1) defines contract of sale to include both a present sale of goods and a contract to sell goods at a future time; a “sale” consists in the passing of title from the seller to the buyer for a price. This agreement provided that title would pass to the appellee Sizemore at the conclusion of the contract compliance, with Sizemore to pay ad valorem taxes and receive all tax credits. Moreover, in the peculiar circumstances of the property conveyed, the appellant conveyed to Sizemore not merely a piece of equipment obtained from a third party, but equipment recommended by appellant to mesh with a computer software service or program coordinated or designed by appellant to conform to Sizemore’s stated business requirements. This was a sale of equipment and software; it was not a lease or procurement of equipment from a third party so as to justify the view of Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 860 (338 SE2d 63). In the case just cited, the agreement was a lease, and title obviously did not pass to the lessee; the lessee was not entitled to the statutory remedy granted to a buyer under OCGA § 11-2-608.

The jury was authorized to find the equipment and service recommended and designed to conform to Sizemore’s business requirement, did not conform and was unfit for the purpose intended. Therefore, under OCGA § 11-2-608 Sizemore could revoke his acceptance of the products sold. There is an express waiver of warranties in this contract, but OCGA § 11-2-608 is an available remedy even where the seller has attempted to limit its warranties. Esquire Mobile Homes v. Arrendale, 182 Ga. App. 528, 529 (356 SE2d 250). Where circumstances cause an exclusive or limited remedy to fail of its purpose, remedy may be had as provided in the commercial code. If the seller attempts to deprive the buyer of the substantial value of the bargain by including a contract clause excluding all express or implied warranties, the general remedy provisions of the Uniform Commercial Code take effect. Freeman v. Hubco Leasing, 253 Ga. 698, 705 (324 SE2d 462); Esquire Mobile Homes, supra. It is not necessary to call the warranty exclusion unconscionable and of no effect; it is necessary only to say the commercial code provides a general remedy besides any warranty, and an attempt to modify or limit this statutory remedy will be held ineffective to remove the statutory remedy. Id. pp. 529-530. The fact that a buyer may have a remedy against the manufacturer (see Petroziello, supra, involving a true lease) does not affect this remedy which is by law given against the seller. Cf. Esquire Mobile Homes, supra, pp. 528 (2), 530.

Since the jury was authorized to find this transaction a sale which was properly revoked for nonconformance, the verdict was authorized and a directed verdict for seller was properly denied.

2. It follows from what we just said that the trial court did not err in charging the jury on the subject of revocation of acceptance.

3. The appellant has not shown the award of damages was outside the evidence.

4. The trial court did not err in excluding from evidence a letter written by appellant’s attorney to Sizemore’s attorney expressing appellant’s willingness to “go to Mr. Sizemore’s office and make the necessary changes in his program to eliminate this problem.” See generally Brooks v. Fincher, 150 Ga. App. 201 (257 SE2d 326). Any relevance of this letter is far outweighed by its prejudicial value. It contains several biting references to a purported “personality conflict” and to the attorney’s expectance of a response to the letter, “although I think I know what Mr. Sizemore’s answer will be.” It is self-serving. There was evidence appellant had tried more than once to remedy the nonconformance of the system and the suit was filed, and the sale revoked, when it appeared the system would not or could not be conformed to the use intended; this letter is suggestive of an offer to compromise the suit for it was written more than a year after Size-more filed suit. The trial court did not err in excluding it.

Decided January 14, 1988

Rehearing denied February 23, 1988.

H. Arnold Hammack, for appellant.

John A. Meier II, W. Spencer Lee IV, for appellee.

Judgment affirmed.

Deen, P. J., concurs. Pope, J., concurs in judgment only.


text:
    75248.
    KING et al. v. THOMPKINS.
    (366 SE2d 340)
   Pope, Judge.

Plaintiff Alvie Thompkins claims she was the victim of fraud and collusion by the officers and employees of Futuristic Realty Company, Inc. in regard to the sale of her home and the attempted purchase of another home. Her original five-count complaint was filed against Futuristic, Brenda Morgan, Robert King and the owners of the house she attempted to purchase, Roosevelt and Bernita Winfrey. Count Five of the complaint, the claim against the Winfreys, was voluntarily dismissed. Damages on Count One of the complaint in the amount of $9,000 were awarded plaintiff by consent order and were paid by the Georgia Real Estate Commission. Plaintiff then filed an amendment to the complaint attempting to add Malvin Trawick and Richard Hughes as defendants to the action. The amendment to the complaint made allegations against Trawick and Hughes only in regard to Count Two of the complaint. Plaintiff never moved the court for an order to permit her to add parties to the action, as required by OCGA § 9-11-21. However, service of the amended complaint was perfected upon Hughes, who filed a pro se answer which failed to raise the defense of improper joinder for plaintiff’s failure to obtain leave of court to add him as a party defendant. Trawick failed to file a responsive pleading because he claims he was not properly served at the time the amended complaint was filed. Trawick claims he was properly served only fourteen days before the trial commenced, which was over one year after the amended complaint was filed with the court. After a hearing on the issue of sufficiency of service, the trial court found defendant Trawick had been properly served a year earlier and found him to be in default. The answer of defendant King was stricken as a sanction for failure to attend his own deposition and default judgment was likewise entered against him. Thus, at trial, plaintiff was required to prove liability in order to recover from defendant Hughes, who had timely responded by denying the allegations of plaintiff’s complaint. Plaintiff was required only to prove damages in order to recover on her default judgments against defendants Trawick and King.

Plaintiff Thompkins’ case against the five defendants (the three defendants now before us plus Futuristic and Brenda Morgan) was consolidated for trial with a related case brought by four other plaintiffs against these same defendants. A verdict was returned in favor of plaintiff Thompkins and against all defendants on each remaining count of plaintiff’s complaint. Defendants King, Trawick and Hughes appeal.

1. Defendants Trawick and Hughes argue the judgment against them should be reversed because they were never properly made parties to the action. Parties may be added to a lawsuit only by order of the court. OCGA § 9-11-21. The record shows plaintiff failed to obtain leave of the court to add defendants Trawick and Hughes. However, the record also shows this defense was not properly raised by defendants in the pretrial order. “A pretrial order limits the issues for trial to those not disposed of by admissions or agreements of counsel. The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice. OCGA § 9-11-16 (b). If a claim or issue is omitted from the order, it is waived.” (Cits, and punctuation omitted.) Long v. Marion, 251 Ga. 431, 433 (360 SE2d 255) (1987). This rule applies to the issue or defense of failure of the opposite party to obtain leave of court to add a party by amendment to an existing suit. Cf. CMT Investment Co. v. Automated Graphics Unlimited, 175 Ga. App. 353 (333 SE2d 196) (1985) (where defendant was found not to have waived his defense prior to trial of the case where no pretrial order was entered).

On rehearing, defendant Trawick argues he did raise the issue of failure to obtain leave to add a party in his portion of the pretrial order. The pretrial order covered the claims of five individual plaintiffs. Defendant Trawick did not object specifically to plaintiff Thompkins’ complaint, but to all “plaintiffs’ ” contentions on the ground he was not a named party to some of the “cases.” A careful reading of this objection shows it referred to his defense of insufficiency of service by plaintiff Thompkins. This is further supported by the fact that the only pretrial motion brought by Trawick was a motion to dismiss for insufficiency of service. Having lost the motion to dismiss, he made no further motion and presented no evidence to the trial court on the issue of failure to obtain leave of court to add him as a party. Defendant Trawick’s vague and ambiguous objection in the pretrial order to the claims of all five plaintiffs was insufficient to preserve this defense, especially in light of the fact that he failed to raise the defense specifically by motion before trial, as he did for his defense of insufficiency of service.

2. We find no merit in the defendants’ challenge to the verdict on the general grounds. Where there is any evidence to support the verdict of the jury and the judgment of the court, judgment will not be disturbed. Scott v. Scott, 243 Ga. 472 (254 SE2d 852) (1979). Defendants argue that plaintiff was damaged only by the acts of defendant Brenda Morgan and they should not be held liable for the wrongful acts of another. The evidence presented at trial was sufficient to support a finding that all three defendants here acted in concert with defendant Brenda Morgan so that they may be held jointly liable with the actual perpetrator of the wrongful acts. See Ketchum v. Price, 31 Ga. App. 49 (119 SE 442) (1923).

3. In a civil case, multiple defendants are not each entitled to strike the full number of jurors, but all defendants must join in striking the jury. Pool v. Gramling, Spalding & Co., 88 Ga. 653 (4) (16 SE 52) (1891). Therefore, the trial court did not err in requiring the defendants to cooperate and confer in striking the jury. We find no merit in defendants’ claim that they were prejudiced before the prospective jurors by appearing to cooperate in the striking of the jury when, in fact, their positions in the trial of this case were hostile to each other.

4. Defendant Trawick argues the court erred in failing to require the jury to return a special verdict in the form of written findings on each issue as to each defendant, as he requested. “Subsection (b) of Section 49 of the Civil Practice Act [OCGA § 9-11-49], which makes it the duty of the trial judge, upon written request, to require the jury to return only a special verdict in certain types of cases, has no application here. It is within the court’s discretion as to whether he will require a special verdict under Section 49 (a) of the Civil Practice Act. Pressley v. Jennings, 227 Ga. 366 [(20)] (180 SE2d 896) [(1971)]. We find no abuse of discretion here. . . .” Christiansen v. Robertson, 139 Ga. App. 423, 427 (228 SE2d 350), rev’d on other grounds, 237 Ga. 711 (229 SE2 472) (1976). The record shows the trial court carefully questioned the foreman of the jury as to the jury’s finding of liability on each count of plaintiff’s complaint as to each defendant. Even though this trial combined two cases and involved multiple plaintiffs and defendants, we find no confusion as to the verdicts which were returned against these defendants.

5. The jury awarded damages of $25,000 to plaintiff against defendants jointly and severally for liability under Count Two of the complaint for loss of the benefit of the bargain for the house which plaintiff attempted to purchase. By consent order, this award was voluntarily reduced to $10,500, the damages prayed for in the complaint. The jury also awarded $50,000 for general damages, pursuant to Count Three, for malicious abuse of process for a dispossessory action which was brought to remove plaintiff from the house she was occupying and had executed a contract to purchase, and awarded $75,000 punitive damages, pursuant to Count Four of the complaint, for the bringing of a theft action against plaintiff. Given the aggravated circumstances of the case, as shown by the evidence presented at trial, we find the jury’s verdict is not excessive.

6. Defendants also object to the admission into evidence of certain documentary exhibits which they argue were irrelevant. Exhibit No. 65 was a deed from the Veterans Administration to defendant Trawick for real estate not involved in the cases being tried. However, when considered together with other evidence presented at trial, this document was properly admitted as evidence to show a pattern or scheme by defendants Trawick and Morgan to purchase property in their individual names with funds belonging to the realty company or funds from escrow accounts in order to defraud clients of the company. All other exhibits to which objections are made were offered as circumstantial evidence from which the jury could infer that defendants were improperly taking for their own personal use funds from escrow accounts rightfully belonging to their real estate clients. Therefore, these exhibits were not irrelevant to plaintiff’s claims.

7. As discussed in Division 1 of this opinion, we find no error in the trial court’s entry of a default judgment against defendant Trawick based on the court’s finding that he was properly served one year prior to trial but failed to file an answer to plaintiffs complaint within the time required by law.

8. Defendants Trawick and Hughes, who were added to the action by amendment to the complaint, argue that the judgment against them should be overturned because it imposes liability for certain claims which were not made against them. The jury returned a verdict against all defendants on Counts Two, Three and Four of plaintiff’s complaint. The only allegations against defendants Trawick and Hughes contained within the amended complaint related to Count Two. However, the pretrial order entered in this case set forth each of plaintiff’s claims against all “defendants.” Except for defendant Trawick, no objection was raised to plaintiff’s statement of the case.

Even defendant Trawick did not object to any specific counts or claims made by plaintiff Thompkins. The pretrial order set forth the claims of all five plaintiffs in the two consolidated cases. As noted in Division 1 of this opinion, defendant Trawick did not object specifically to plaintiff Thompkins’ claims, but to all “plaintiffs’ ” contentions on the ground he was not a named party to some of the “cases.” At best, this general objection referred to his defense of insufficiency of service and was not sufficient to preserve an objection to any particular counts within plaintiff Thompkins’ complaint. This is borne out by the fact that the only pretrial motion brought by Trawick was a motion to dismiss for insufficiency of service. Having lost the motion to dismiss, he voiced no further objection to having to defend against any particular counts within Thompkins’ complaint. Moreover, as noted in Division 2 of this opinion, the evidence presented at trial was sufficient to raise the issue and support a finding that all defendants acted in concert with defendant Brenda Morgan, against whom all counts of plaintiff Thompkins’ complaint were brought. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” OCGA § 9-11-15 (b). Therefore, both the pretrial order and the evidence presented at trial establish that defendants were rightfully made parties to all claims set forth in plaintiff Thompkins’ complaint.

Decided February 5, 1988

Rehearing denied February 23, 1988

Walter L. Fortson, for appellants.

Thomas E. Maddox, Jr., for appellee.

A pretrial order, when entered, establishes the issues to be tried and controls the subsequent course of the action. OCGA § 9-11-16. The relief granted by the verdict and judgment was in accordance with the allegations and issues set forth in the pretrial order. Defendants may not object for the first time on appeal to the specification of issues contained in the pretrial order. Brumby v. Brooks, 140 Ga. App. 210 (3) (230 SE2d 359) (1976).

9. Finally, defendants Trawick and King argue that special damages awarded on a default judgment may not exceed the amount specified in the prayer for relief. In Count Two of her complaint, plaintiff prayed for relief in the amount of $10,500 for loss of the benefit of the bargain for the house she attempted to purchase from defendants. The jury returned a verdict of $25,000 on this claim which was included in the judgment originally entered by the court. However, this discrepancy was later corrected by consent judgment which reduced the award on Count Two of plaintiff’s complaint to $10,500. Therefore, defendants’ ninth enumeration of error is moot.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


text:
    75490, 75491.
    FIRST NATIONAL BANK OF ATLANTA v. STROTHER FORD, INC. (two cases).
    (366 SE2d 307)
   Birdsong, Chief Judge.

This is an appeal both from an order of the State Court of Cobb County granting appellee’s motion for summary judgment on its foreclosure of mechanic’s lien and from the order of said court denying appellant’s personal property foreclosure.

Appellant, The First National Bank of Atlanta (hereinafter referred to as “bank”) is the owner of a jeep-type motor vehicle which it had leased to one Wayne J. Keys. Mr. Keys took the vehicle to the appellee, Strother Ford, Inc. (hereinafter referred to as “mechanic”) for repairs. The mechanic performed repairs in the amount of $2,780.84 on the jeep for which he has not been paid to date. Mr. Keys, the lessee, has apparently abandoned his contractual interest in the use of the jeep and currently owes the bank $14,486.19 on the leasing contract. Subsequent to the repair of the jeep, the mechanic contracted to sell the bulk of its assets to one Clancy (who now operates a business at the mechanic’s old location under the name of Chuck Clancy Ford, Inc.). The jeep was left in storage with Chuck Clancy Ford who was acting as a bailee for the mechanic.

The bank and mechanic each has filed a separate action with respect to the jeep. The bank filed a personal property foreclosure petition, against Clancy, under the provisions of OCGA § 44-14-230 (b), and the mechanic entered a motion to intervene in this action which was granted. The mechanic then commenced an action to foreclose the mechanic’s lien it was asserting under the provisions of OCGA § 40-3-54. The trial court held an evidentiary hearing on the merits of the bank’s foreclosure petition. Thereafter, the trial court entered a final order and judgment denying and dismissing the bank’s action for a writ of possession, finding that the mechanic had a valid and enforceable mechanic’s lien on the jeep for the cost of the repairs. The mechanic then filed a motion for summary judgment in its companion case on the ground that the validity and enforceability of its mechanic’s lien had been conclusively established by the final judgment against the bank in the personal property foreclosure suit. The trial court granted the mechanic’s summary judgment motion and entered its judgment of foreclosure in favor of the mechanic.

Appellant has asserted eleven enumerated errors; however, the threshold question is whether a valid mechanic’s lien attached to appellant’s jeep under the facts and circumstances of this case.

According to statute, “[a] 11 mechanics of every sort shall have a special lien on any vehicle required to have a certificate of title by Code Section 40-3-20 for work done, or for work done and materials furnished, or for materials furnished in repairing or servicing such vehicle. . . . Such special lien shall be superior to all liens except for taxes and such other liens and security interests of which the mechanic had actual or constructive notice before the work was done or material furnished.” OCGA § 40-3-54. However, in order to sustain a mechanic’s lien on a motor vehicle a valid debt must exist between the owner of the vehicle and the claimant. See OCGA § 40-3-54 (c); P & B Corp. of America v. One 1983 BMW, 175 Ga. App. 462 (333 SE2d 633). For a valid debt to exist on a motor vehicle, within the meaning of OCGA § 40-3-54, “the work must have been done or the supplies furnished by a contract with the owner or by the authority of the owner.” (Emphasis supplied.) P & B Corp. at p. 462. In this case it is clear that appellant is the owner of the jeep. Appellant’s name is duly recorded on the vehicle’s certificate of title as owner, and OCGA § 40-3-25 (c) provides that a certificate of title issued by the state revenue commissioner is prima facie evidence of the facts appearing thereon. Further, we are satisfied that appellee was placed on constructive notice of all facts contained in the certificate of title. Cf. Williams v. State, 164 Ga. App. 467, 468 (297 SE2d 373) (a security interest noted upon a motor vehicle’s certificate of title gives constructive notice of its existence); Franklin Fin. Co. v. Strother Ford, 110 Ga. App. 365, 368 (138 SE2d 679), citing Bank of Ringgold v. West Pub. Co., 61 Ga. App. 426, 428 (6 SE2d 598) (the object of the recording statutes is the constructive notice which is given to all the world as to the rights of the parties thereto).

The facts of this case show that no express contract for the jeep’s repair existed between the bank and the mechanic. However, the mechanic asserts that the bank at least impliedly authorized the motor vehicle repairs ordered by the lessee, Mr. Keys, and thus is liable under the principles espoused by this court in Columbus Square &c. Co. v. B & H Steel Co., 150 Ga. App. 774 (258 SE2d 600). In Columbus Square, a lien in rem upon certain real property was found valid where the tenant who contracted with the mechanic/materialman for repair of the premises was obligated by the leasing contract to make certain repairs to the premises and was given a construction allowance in the form of rent reduction to do so. This court held in Columbus Square that “it is not necessary that there be a contract between the landowner and the materialman to obtain a judgment in rem.” Id. at 777. This court then concluded that “there was a specific contract for the improvements made prior to the commencement date of the lease [entered between the landlord and tenant]. . . . Thus, there need be no contract between the materialman and the true owner, but there must be a contract for material between the true owner and some person for erection of the improvements.” (Emphasis supplied.) Id. at 777. The mechanic contends that the bank’s leasing contract with the lessee, Mr. Keys, contained a specific contractual requirement for vehicle repairs which would make the bank’s jeep subject to a lien in rem in accordance with our decision in Columbus Square. We are satisfied that our opinions in P & B Corp. and in Columbus Square are compatible. Further, we believe that the principles contained in the latter case are applicable to instances where mechanic’s liens are filed under OCGA § 40-3-54. Accordingly, we will examine the terms of the leasing contract which existed between the bank and its lessee to determine whether, within the meaning of Columbus Square, a specific contract for vehicle improvements existed. Subparagraph 8D of the lease contract expressly provides that: “[Lessee] is responsible for the maintenance, servicing and repair of the Vehicle in accordance with the manufacturer’s recommendations and as necessary to maintain the Vehicle in conformity with the Standards for Wear and Use. [The bank is] not responsible for any maintenance or servicing of any kind whatsoever.”

Decided January 21, 1988

Rehearing denied February 23, 1988

Stephen J. Knezo, for appellant.

Toby B. Prodgers, for appellee.

In our view this provision does not create the type of specific contractual requirement referred to in Columbus Square. Moreover, this case is distinguishable from Columbus Square in that the lease provisions contained the parties’ agreement that the bank is not responsible for, and thus by implication not liable for, any type of maintenance whatsoever on the vehicle. Accordingly, we find that under the facts of this case there exists no “valid debt,” as required by OCGA § 40-3-54 (c), as the evidence before this court does not establish that the repairs in question were “furnished by a contract with the owner or by the authority of the owner.” P & B Corp., supra. In reaching this conclusion, we have observed the well-established rule that, “ ‘as our lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor [lien claimant] and in favor of the debtor.’ ” Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889); Ben Hill Ready &c. Co. v. Prather, 160 Ga. App. 149 (1) (286 SE2d 481); Rochester v. Dixon’s Concrete Prods., 154 Ga. App. 239 (1) (267 SE2d 819).

Accordingly, this case is returned to the trial court to issue a writ of possession and to take such other action as is appropriate and consistent with the guidance contained in this opinion.

Judgments reversed and cases remanded with direction.

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


text:
    75722.
    MOON v. YANCY et al.
    (366 SE2d 357)
   Sognier, Judge.

Mike L. Moon instituted an action against Patricia and William Yancy, alleging that the Yancys had converted funds due him from a partnership or joint venture. The Yancys are North Carolina residents, and jurisdiction was alleged under the provisions of OCGA § 9-10-91, the Georgia long arm statute. The Yancys answered and moved to dismiss for lack of personal jurisdiction, and Moon appeals from the trial court’s grant of the Yancys’ motion.

1. Appellant contends the trial court erred by striking his affidavit submitted in response to the motion to dismiss. In their affidavits in support of the motion, appellees stated they had conducted business in Georgia, but only in their capacities as employees of several corporations, including Banner House, Inc., in which corporation they are shareholders and officers, as revealed by their answers to interrogatories. In appellant’s affidavit in response to the motion to dismiss, he attempted to “pierce the corporate veil.”

The record does not include a transcript of the hearing on appellees’ motion to dismiss. The trial court recites that a hearing was held, and that appellees objected to and moved to strike appellant’s affidavit, but fails to specify the reason for its striking. The parties, in their briefs on appeal, address this enumeration by dealing with the issue of whether appellant’s affidavit meets the requirement set forth in OCGA § 9-11-56 (e) that it be based on personal knowledge, which requirement is applicable as well to motions to dismiss under the provisions of OCGA § 9-11-12 (b). McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552) (1977). Our own examination of appellant’s affidavit reveals no other possible basis on which the trial court could have based its decision to strike the affidavit, and therefore we focus our analysis on that ground. It is true that the jurat does not recite that the affidavit is made on personal knowledge, and some of the statements sworn to in the affidavit are conclusory. However, the affidavit also includes statements which clearly are based on personal knowledge, such as that appellant “dealt with [appellees] as individuals” and that “they represented to [appellant] that they owned” the business in Georgia with which appellant dealt. “Even if appellant’s [affidavit does] contain some material which is not derived from personal knowledge and therefore does not satisfy the requirements of OCGA § 9-11-56 (e) . . . , those portions of the [affidavit] which clearly are derived from personal knowledge do meet the requirements of the statute and must be considered. [Cit.]” Falcone Intl. v. Clowes, 184 Ga. App. 442, 443 (1) (361 SE2d 708) (1987). Accordingly, it was error for the trial court to strike appellant’s affidavit in its entirety.

2. The admissible portions of appellant’s affidavit at least arguably raise a question of fact as to whether appellees, who were the principal shareholders and officers of Banner House, Inc., conducted their “private and corporate business on an interchangeable or joint basis as if they were one,” such as to deprive them of standing to complain when appellant did the same. Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (250 SE2d 851) (1978). If appellant has sufficiently “pierced the corporate veil,” it is clear that appellees are subject to the Georgia court’s jurisdiction under OCGA § 9-10-91. Since the trial court erroneously failed to consider any portion of appellant’s affidavit, as discussed in Division 1, supra, we vacate the trial court’s grant of appellees’ motion to dismiss, and remand this case to the trial court for consideration of whether the evidence, including those admissible portions of appellant’s affidavit, indicates that the corporate identity alleged by appellees should be disregarded, thus subjecting appellees, as individuals, to the jurisdiction of the trial court. After the trial court’s ruling pursuant to this opinion, whichever party may be aggrieved by such new ruling will be free to pursue whatever right of appeal may be available at that time, in accordance with appropriate appellate procedure.

Decided February 9, 1988

Rehearing denied February 23, 1988.

Michael E. Garner, for appellant.

Robert C. Martin, Jr., for appellees.

Judgment vacated and case remanded.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.