author: Ruffin, Judge.

text:
    A02A0641.
    FIDELITY NATIONAL TITLE INSURANCE COMPANY v. MATRIX FINANCIAL SERVICES CORPORATION.
    (567 SE2d 96)
   Ruffin, Judge.

Matrix Financial Services Corporation (“Matrix”) sued Fidelity National Title Insurance Company (“Fidelity”) in Fulton County for breach of a title insurance contract and bad faith refusal to pay an insurance claim. Matrix moved for summary judgment, which the trial court granted. Fidelity now appeals, and for reasons that follow, we affirm.

To prevail on a motion for summary judgment, “the movant must show that there is no genuine issue of material fact and that the facts, viewed in the light most favorable to the nonmovant, warrant judgment as a matter of law.” Viewed favorably to Fidelity, the record shows that, in 1991, Harold and Deborah Haygood sold land located in Monroe County (“the property”) to Hamilton Jones for $115,000. At the closing, Jones delivered to the Haygoods a deed to secure debt on the property for $105,000. Jones also gave Mildred Mock, the Haygoods’ real estate agent, a security deed for $3,240, which represented part of her real estate commission. Both security deeds were recorded in the Monroe County real estate records.

Unable to collect the indebtedness from Jones, the Haygoods prepared to foreclose on the property in 1992. Before the foreclosure, however, Jones gave them a deed in lieu of foreclosure dated September 28, 1992. The Haygoods did not file the deed in the county records, and Jones remained on the property. Matrix and Fidelity did not learn about the deed in lieu of foreclosure until the discovery phase of this litigation.

In 1997, Jones sought to “refinance” the property for $105,000 and submitted a uniform residential loan application to Premier Financial Services (“Premier”). Despite giving the Haygoods a deed in lieu of foreclosure in 1992, Jones represented that he owned the property in fee simple. Premier processed the application and “put everything in proper order to go to Matrix,” the lender. As described by a Matrix representative, Premier’s role was to “solicit, process and originate [the] loan application [ ] for assignment to Matrix for underwriting, closing and funding.”

Matrix approved Jones’ loan application and proceeded with the loan closing. Before the closing, Gerald Fudge, Matrix’s closing attorney, obtained a property title search, dated July 2, 1997, which revealed the 1991 Haygood and Mock security deeds. Fudge contacted Premier about the outstanding liens, and he subsequently received orders for cancellation relating to both security deeds. The Haygoods’ cancellation order, which stated that the 1991 indebtedness had “been paid in full,” was dated July 7, 1997, and recorded in the county records on July 8,1997. The Mock cancellation, dated July 9, 1997, and recorded the following day, similarly indicated that Jones’ 1991 debt to Mock had been fully satisfied.

Matrix closed the Jones loan on July 16, 1997. To secure the $105,000 debt, Jones gave Matrix a security deed to the property. Fudge recorded Matrix’s security deed in the Monroe County records on July 28, 1997.

As part of the loan transaction, Matrix purchased a title insurance policy from Fidelity through Fudge, who was acting as Fidelity’s agent. The title policy named “Matrix Financial Services Corporation, its successors and/or assigns” as the “insured.” By its terms, the policy protected the insured against loss or damage by reason of, among other things, defects in or liens or encumbrances on the title, unmarketability of title, or the priority of any lien or encumbrance over the lien of the insured mortgage. The policy required Fidelity to defend the insured against third-party claims asserting superior title in the property. Fidelity also had the right, “at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion may be necessary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured, or to prevent or reduce loss or damage to the insured.”

The policy required the insured to give Fidelity “all reasonable aid” in such actions. It also excluded from coverage “[d]efects, liens, encumbrances, adverse claims, or other matters . . . created, suffered, assumed or agreed to by the insured claimant.” In addition, Fidelity could not be held liable for loss or damage “voluntarily assumed by the insured in settling any claim or suit without [Fidelity’s] prior written consent.”

After the closing, Matrix assigned its interest in the property and the loan to Residential Funding Corporation (“Residential Funding”). Jones ultimately defaulted on the loan, and Residential Funding commenced foreclosure proceedings. During those proceedings, Residential Funding discovered that, on July 7,1997, Jones gave the Haygoods a new security deed in the property to secure a $170,000 debt. On July 9, 1997, he also gave Mock a security deed for $5,061.50. The Haygoods recorded their security deed on July 8, 1997, and Mock recorded her deed on July 10, 1997, well before Matrix recorded its security deed on July 28, 1997. Residential Funding informed Fidelity about the Haygood and Mock security deeds. Given the apparent problems with title priority, Residential Funding also requested that Matrix repurchase the Jones loan, which Matrix agreed to do.

On June 9, 1999, the Haygoods declared their loan to Jones in default and threatened foreclosure under their July 7, 1997 security deed. Later that month, Matrix demanded payment from Fidelity under the title insurance policy, but Fidelity did not satisfy the claim. In July 1999, the Haygoods commenced foreclosure proceedings, claiming superior title. Although the record is not clear, it appears that the Haygood foreclosure sale took place on September 7, 1999.

Matrix sued Fidelity under the title insurance policy on September 22, 1999, asserting that the 1997 Haygood and Mock security deeds are superior to Matrix’s deed, rendering the property unmarketable. According to Matrix, Fidelity breached its title insurance obligations by not providing Matrix with clear title to the property or paying Matrix the policy amounts. Matrix further claimed that Fidelity refused to pay the insurance claim in bad faith. Construing the title insurance policy, the trial court granted Matrix summary judgment on both claims. We find no error.

1. Breach of Contract. Fidelity argues that the trial court improperly granted Matrix summary judgment on the breach of contract claim because (a) Matrix enjoys first priority title in the property and thus has not suffered a loss, and (b) to the extent any loss occurred, Matrix’s own actions caused that loss.

(a) We disagree with Fidelity’s assertion that Matrix has not suffered a loss under the title policy. At this point, two security deeds recorded prior to Matrix’s deed are on file with the Monroe County clerk’s office. A third party has asserted and, according to the recorded filings, has priority over Matrix’s interest, a condition insured against under the policy.

Furthermore, the policy defines “unmarketability” as “an alleged or apparent matter affecting the title to the land . . . which would entitle a purchaser of the estate or interest... or the insured mortgage to be released from the obligation to purchase by virtue of a contractual condition requiring the delivery of a marketable title.” Under Georgia law, a marketable title is one that is both unencumbered and “free of any such cloud as would prevent it from being sold to a reasonable purchaser or mortgaged to a person of reasonable prudence.” In this case, Matrix’s interest in the property is encumbered by the senior Haygood and Mock security deeds, raising marketability issues.

Notwithstanding the 1997 Haygood and Mock security deeds, Fidelity contends that Matrix has a first priority interest in the property. According to Fidelity, because Jones gave the Haygoods a deed in lieu of foreclosure in 1992, the 1997 security deeds conveyed no interest in the property and are, therefore, invalid. Fidelity also argues that Matrix has priority over the unrecorded deed in lieu of foreclosure.

Fidelity may be correct that, in an action to quiet title, Matrix’s interest would be deemed superior to the Haygood and Mock interests. A quiet title action, however, must be brought in the county where the land is situated — here, Monroe County. The record contains no evidence that any action to adjudicate the property’s title has been filed in Monroe County or, for that matter, in any other county. The evidence shows instead that the Haygoods and Mock recorded security deeds before Matrix filed its deed, and no court has declared those security deeds invalid. Indeed, the Haygoods instituted foreclosure proceedings — and apparently foreclosed — in 1999. Fidelity’s claim that Matrix suffered no loss under the policy, therefore, lacks merit.

(b) Fidelity also contends that, even if Matrix suffered a loss under the policy, Matrix — not Fidelity — is responsible for that loss. In Fidelity’s view, Matrix’s claim is excluded by the policy, which excepts from coverage defects, liens, or encumbrances “created, suffered, assumed, or agreed to by the insured claimant.” As with any insurance policy, we construe the policy exclusions “most strongly against the insurer and in favor of providing the indemnity sought.” The policy’s terms are also “construed as reasonably understood by an insured.” Applying these principles, we find no merit in Fidelity’s causation arguments.

(i) Fidelity first asserts that Matrix caused its damages — and failed to mitigate them — by refusing to bring $uit to establish its superior interest in the property. Nothing in the policy’s terms, however, required Matrix to prosecute a quiet title action or to otherwise commence litigation challenging the Haygoods’ adverse claim. Instead, the policy gave Fidelity the right to establish Matrix’s superior interest or cure the title defect through litigation or other action. Matrix was merely obligated to aid Fidelity in this effort. And this “aid” provision cannot reasonably be understood to require the insured to institute legal action, particularly when the policy expressly gives Fidelity the right to bring — at its own expense — such an action.

Given the clear policy terms, and construing the policy exclusions against Fidelity, we refuse to find that Matrix created, suffered, assumed, or agreed to the adverse title claims by not instituting a quiet title action or otherwise challenging those claims in court. Furthermore, since the policy did not require Matrix to commence litigation, we cannot find that Matrix failed to mitigate its damages by declining to do so.

(ii) In addition, Fidelity claims that Matrix “locked in” its loss by repurchasing the Jones loan from Residential Funding. Fidelity apparently contends that, through the repurchase, Matrix agreed to the adverse claims or voluntarily assumed the loss by settling a claim without Fidelity’s consent. Again, we disagree.

Fidelity knew that the Jones loan might be transferred or assigned between lenders. In fact, its policy specifically described the “insured” as Matrix and “its successors and/or assigns.” It further defined “insured” as “the owner of the indebtedness secured by the insured mortgage and each successor in ownership of the indebtedness.”

Moreover, Fidelity has pointed to no policy term restricting the insured’s right to assign or transfer the indebtedness. And the policy did not limit or exclude the transferee’s coverage rights merely because the transferee accepted a transfer with knowledge of a title defect. Instead, it reserved to Fidelity “all rights and defense as to any successor that [Fidelity] would have had against any predecessor insured, unless the successor acquired the indebtedness as a purchaser for value without knowledge of the asserted defect, lien, encumbrance, adverse claim or other matter insured against.”

The policy thus anticipated that a successor insured, such as Matrix in this situation, might purchase the indebtedness with knowledge of an adverse claim. Although Fidelity reserved its rights and defenses against a knowledgeable successor, the policy did not state that the successor accepted the adverse claim or settled a claim under the policy simply by acquiring the indebtedness. Despite Matrix’s knowledge of the adverse claims, therefore, its decision to purchase the Jones loan from Residential Funding did not undermine coverage.

(iii) Fidelity also argues that Matrix should never have closed the Jones loan and that, by doing so, it created its own loss. The parties agree that Jones made various misrepresentations in the loan transaction. According to Fidelity, if Matrix had properly investigated Jones’ representations and performed an adequate property title search, Matrix would not have closed the loan. It thus contends that Matrix negligently created its own title problems and cannot legally or equitably seek coverage under the policy.

Once again, we find no merit in Fidelity’s argument. Fidelity has pointed to no policy provision excluding from coverage a mortgage transaction that, in its view, should not have closed. Regardless of the circumstances underlying the loan transaction, Fidelity agreed to insure the priority of Matrix’s interest in the property. By issuing the title insurance, Fidelity gave its opinion “ ‘concerning the validity of title, backed by an agreement to make that opinion good if it should prove to be mistaken and a loss should result in consequence.’ ” It cannot avoid its policy obligations simply by second-guessing Matrix’s decision to close the loan. Regardless of whether Jones was an appropriate loan risk, Fidelity insured the title.

Furthermore, Georgia law permitted Fidelity to write its title policy “only upon evidence or opinion of title obtained and preserved by the insurer.” Fidelity — not Matrix — was responsible for obtaining the evidence to support its title opinion. Matrix’s failure to discover the prior-filed security deeds, therefore, is irrelevant to Fidelity’s liability.

(iv) Finally, Fidelity briefly argues that Matrix failed to cooperate with Fidelity under the policy and mitigate its damages by refusing to demand that Premier purchase the Jones loan. According to Fidelity, because Premier was negligent in preparing and investigating Jones’ loan application, Matrix could have forced Premier — presumably through litigation — to indemnify it or purchase the Jones loan. Again, however, nothing in the title insurance policy required Matrix to pursue Premier for negligent loan preparation. As discussed above, the policy only obligated Matrix to aid Fidelity in the defense and prosecution of actions. Matrix’s failure to seek a remedy from Premier, therefore, did not subvert its title insurance coverage.

2. Bad Faith Failure to Pay. In its complaint, Matrix alleged that Fidelity violated OCGA § 33-4-6 by refusing in bad faith to pay the title insurance claim. That Code section “subjects an insurer to penalties and attorney fees if it refuses to pay a covered loss in bad faith.” Bad faith penalties may not be assessed, however, “ ‘if [the] insurer has a reasonable and probable cause for refusing to pay a claim.’ ” Fidelity argues that, because it had reasonable defenses to Matrix’s claim, the trial court erred in granting Matrix summary judgment on the bad faith allegations.

The trier of fact generally resolves questions of bad faith. In this case, however, we agree with the trial court that summary judgment was proper. Matrix obtained a title insurance policy to guard against a defect in the title. The policy required Fidelity to pay — or otherwise cure the title problem — in the event of such defect. Here, a defect clearly existed, triggering Fidelity’s obligations under the policy.

Decided June 18, 2002.

Shapiro, Fussell, Wedge, Smotherman & Martin, George M. Kent, Jr., for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Scott H. Michalove, Peter L. Lublin, for appellee.

Furthermore, as found in Division 1, each of Fidelity’s defenses lacks merit as a matter of law. Even if, as Fidelity claims, Matrix negligently closed the Jones loan, Fidelity was not relieved of its obligations under the title insurance policy. Fidelity’s mitigation of damages arguments also fail, given the policy terms. We recognize that questions remain regarding title priority. Yet, two prior-recorded security deeds currently encumber Matrix’s interest. And although the title policy gave Fidelity the right to litigate the title dispute, it instead insisted that Matrix bring such an action. Under the policy terms, Fidelity’s effort to shift this responsibility to Matrix was unreasonable.

Fidelity presented no valid grounds to contest Matrix’s insurance claim. Accordingly, the trial court did not err in awarding Matrix summary judgment on its bad faith allegations.

3. Our decision in Divisions 1 and 2 renders Fidelity’s remaining enumerations of error moot.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

        GFA Business Solutions v. Greenway Ins. Agency, 243 Ga. App. 35 (531 SE2d 134) (2000).

       See OCGA §§ 44-2-2 (b); 44-14-63 (a); Church of the Nativity v. Whitener, 249 Ga. App. 45, 47 (2) (547 SE2d 587) (2001) (“In a contest between deeds upon a valuable consideration, from the same grantor, conveying the same property, such deeds, as against each other, where taken without notice, will take priority only from and after the date of lawful record or filing for record.”) (punctuation and footnote omitted).

        Hill v. McGarity, 179 Ga. App. 788, 789 (1) (347 SE2d 679) (1986).

       See OCGA § 23-3-62 (a); Smith v. Ga. Kaolin Co., 264 Ga. 755-756 (1) (449 SE2d 85) (1994).

        Southern Guaranty Ins. Co. &c. v. Saxon, 190 Ga. App. 652 (379 SE2d 577) (1989).

        St. Paul Fire &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (1) (358 SE2d 925) (1987).

       To this point, Fidelity has chosen not to exercise this right.

       See J. C. Penney &c. Ins. Co. v. Woodard, 190 Ga. App. 727, 729 (1) (380 SE2d 282) (1989) (“Since the [insured claimants] were not required by law or contract to reduce [the insurer’s] liability by obtaining, maintaining, or availing themselves of other insurance, we conclude neither were they required by any legal or equitable principle of duty to mitigate [the insurer’s] ‘absolute promise to pa/ in this case”) (emphasis omitted).

       (Emphasis supplied.)

        Green v. Sams, 209 Ga. App. 491, 497 (1) (433 SE2d 678) (1993).

       (Emphasis supplied.) OCGA § 33-7-8.

       See id.

       See J. C. Penney, supra.

        Shaffer v. State Farm &c. Ins. Co., 246 Ga. App. 244, 245 (540 SE2d 227) (2000).

       Id.

       See First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 233 (2) (477 SE2d 390) (1996).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0658.
    ROCKWOOD INTERNATIONAL SYSTEMS SUPPLY, INC. v. RADER COMPANIES, INC.
    (567 SE2d 104)
   Johnson, Presiding Judge.

The Gwinnett County Superior Court held Rockwood International Systems Supply, Inc. in contempt for violating a temporary restraining order issued by the Fulton County Superior Court. Rock-wood now argues that the Gwinnett court lacks power to punish for contempt of the Fulton court’s restraining order and that the Fulton court’s order was void for lack of venue. The arguments are without merit because the Gwinnett court acquired the power to punish for violations of the Fulton court order when Rockwood moved this lawsuit from Fulton County to Gwinnett County, and, regardless of venue, the restraining order was not void since the Fulton court had jurisdiction to issue the order. Because Rockwood’s arguments lack merit, we affirm the contempt order.

Steven Bennett and Kevin Hood were employed by Babcock Materials Handling Technology, Inc. In 1998, Bennett and Hood were laid off from their jobs at Babcock. Bennett, Hood and others later formed Rockwood International Systems Supply, which designs and manufactures bulk materials handling equipment for the pulp and paper industry.

Rader Companies, Inc., a successor of Babcock, also designs and manufactures equipment for the pulp and paper industry. In July 2000, Rader filed the instant lawsuit in Fulton County Superior Court against Bennett, Hood, and Rockwood, alleging violations of the Georgia Trade Secrets Act and of the separation agreements entered into by Bennett and Hood upon their employment termination by Babcock.

On the same day it filed the lawsuit, Rader also sought a temporary restraining order to prohibit the destruction of evidence. The Fulton court granted the request, issuing a restraining order for up to 30 days which prohibited Bennett, Hood, and Rockwood from disposing of, transferring, or altering various documents and property.

In September 2000, Rockwood filed a notice to have the lawsuit removed from Fulton County to Gwinnett County pursuant to OCGA § 14-2-510 (b) (4), which, under certain circumstances, allows a corporation to remove an action to the county where it maintains its principal place of business. Rader did not challenge this removal.

In December 2000, Rader filed a motion for contempt in the Gwinnett court, asserting that Bennett, Hood, or Rockwood had discarded documents while the temporary restraining order issued by the Fulton court was in effect. The Gwinnett court held a hearing on the motion and later issued its order finding Rockwood in contempt for wilfully disposing of, transferring, or altering documents in violation of the temporary restraining order. Rockwood appeals from the contempt order.

1. Rockwood claims that the contempt order must be reversed because the Gwinnett County Superior Court has no power to punish it for violating the Fulton County Superior Court restraining order. It is true that a court’s right to punish for contempt is based on the theory that every court has the power to compel obedience to its own orders and judgments. So as a general rule, only the court that has been offended has the power to punish for the contempt.

But the Supreme Court has recognized an exception to this general rule in the context of divorce and alimony cases. The Supreme Court has held that if a superior court other than the court that rendered the original divorce decree acquires jurisdiction and venue to modify that decree, then it likewise may entertain a claim alleging contempt of the original decree. In reaching this holding, the Court noted that there are other exceptions to the general rule that a contempt action must be brought in the offended court, and it specifically cited the exception that if proceedings are transferred from a court rendering judgment to another court, then the latter court acquires jurisdiction to hold a party in contempt of the judgment.

Although the instant case is not a divorce or alimony matter, it does involve the transfer of proceedings from one court to another. And the fact that Rockwood itself caused the case to be moved to another court exemplifies the need for the transfer exception noted by the Supreme Court. Without that exception, a party in Rockwood’s position could wilfully violate a court’s order, but then avoid punishment for such a contemptuous act by removing the case to another court, where it could then rely on the general rule that only the offended court may punish for contempt. We will not sanction such a manipulative use of the law.

Rather, we find that this case falls squarely within the transfer exception noted by the Supreme Court. We thus hold that because the proceedings were transferred from the Fulton County Superior Court to the Gwinnett County Superior Court, the Gwinnett court thereby acquired jurisdiction to hold Rockwood in contempt for violating the Fulton court’s restraining order.

2. Rockwood cites the case of John Hancock &c. Ins. Co. v. Bas-kin for the proposition that a restraining order issued by a court lacking venue is void and a party cannot be held in contempt for violating a void order. While a party indeed does not commit contempt by violating a void order, Rockwood has misread John Hancock, which does not state that lack of venue renders an order void.

What John Hancock actually states is that where pleadings show on their face that the court is without jurisdiction of the subject matter or of the named defendants, then any preliminary order or final judgment is void, and disobedience of a void order or judgment is not contempt of court. In the instant case, the pleadings filed by Rader in the Fulton court do not show on their face that the court lacked subject matter or personal jurisdiction. On the contrary, there is no question that, as a matter of law, the Fulton County Superior Court had subject matter jurisdiction over this case of alleged trade secret and contract violations. Likewise, Rockwood admits that it was served with process, thereby giving the Fulton court personal jurisdiction.

Decided June 18, 2002.

Chamberlain, Hrdlicka, White, Williams & Martin, Eric C. White, James L. Paul, for appellant.

Arnall, Golden & Gregory, Charles L. Gregory, Richard A. Mitchell, Andrew B. Flake, for appellee.

Moreover, if a trial court has jurisdiction to issue an order, the order must be obeyed until it has been superseded, even if it is wrong. The disobedience of such an erroneous, but unsuperseded, order is contempt of court. Here, the Fulton court had jurisdiction to issue the temporary restraining order. Consequently, even if the order was improper because of lack of venue, which may be waived, Rockwood still had to obey the order until it was superseded. The order was not superseded during its 30-day term. So even if it was erroneous, the order was entered in a matter over which the court had subject matter jurisdiction, and disobedience of it is contempt of court.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Corbett v. Corbett, 236 Ga. App. 299, 300 (511 SE2d 633) (1999).

       Id.

        Buckholts v. Buckholts, 251 Ga. 58, 61 (1) (302 SE2d 676) (1983).

       Id., n. 2.

       179 Ga. 86 (175 SE 251) (1934).

        In re Estate of Adamson, 215 Ga. App. 613, 614 (2) (451 SE2d 501) (1994).

        John Hancock, supra at 86, hn. 3.

       OCGA § 15-6-8.

       See Bonner v. Bonner, 272 Ga. 545, 546 (2) (533 SE2d 72) (2000) (court acquires personal jurisdiction by the serving of proper process on parties); OCGA § 9-11-4.

        Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 809 (1) (555 SE2d 175) (2001).

       (Citations and punctuation omitted.) Gilbert v. E & W Constr. Co., 181 Ga. App. 281, 284 (2) (351 SE2d 523) (1986).

       OCGA § 9-11-65 (b).

        Bonner, supra at 546 (1).

        Brewton v. Rowell, 173 Ga. App. 117, 118 (325 SE2d 610) (1984).


author: Miller, Judge.

text:
    A02A0728.
    AUTOMATED SOLUTIONS ENTERPRISES, INC. v. CLEARVTEW SOFTWARE, INC. et al.
    (567 SE2d 335)
   Miller, Judge.

Automated Solutions Enterprises, Inc. (“ASE”) appeals from the grant of summary judgment against it. ASE contends that (1) the defendants’ failure to refile their motion for summary judgment after ASE amended its complaint requires the reversal of summary judgment as to the new matters set forth in the amended complaint and (2) there are genuine issues of material fact as to whether (a) the defendants breached fiduciary duties arising out of a claimed confidential relationship with ASE, (b) one of the corporate defendants breached agreements between it and ASE, (c) the defendants intentionally interfered with ASE’s relationship with one of its employees, and (d) the individual defendant should be held liable regardless of the liability of the corporate defendants. Discerning no error, we affirm.

Construing the evidence in the light most favorable to ASE (Contractors’ Bldg. Supply v. Gwinnett Sash & Door, 199 Ga. App. 38, 40 (2) (403 SE2d 844) (1991)), the record reveals that ASE’s business relationship with TLB, Inc., of which Solomon Software was a division, began in 1989 with a Consulting Agreement. This was followed in 1993 by a Reseller License Agreement between ASE and TLB (including Solomon) and in 1998 by an Addendum to Reseller License Agreement between ASE and Solomon. From 1993 to 1999, Solomon was the only company for which ASE sold and serviced products; during that period, 98 percent of ASE’s revenues was derived from the sale or service of Solomon products.

As of February 1999, Jeff Besch had worked at ASE for six and one-half years as a developer of software. He had told a co-worker that he was unhappy there. On February 17 or 18, 1999, Besch was talking casually with James Stritzinger, an officer of both Solomon and a related corporation, at a business reception and told him he was planning to leave ASE.

Stritzinger responded that if Besch were looking for new employment, there might be an opportunity at STC, a wholly owned subsidiary of Solomon. On March 6, 1999, Besch called Stritzinger to tell him the terms of an employment offer from a party unrelated to this litigation, and Stritzinger indicated that he thought he could better that offer. A week later, Besch and Stritzinger agreed on Besch’s leaving his employment with ASE and becoming employed by STC.

Stritzinger also wanted to negotiate a merger of ASE into STC or to hire some of ASE’s other employees. Stritzinger accordingly asked Besch “to express [to Ron Sicard, ASE’s president,] his dissatisfaction with ASE in as pointed a terms [sic] as he could without coming to the point of saying I resign.” Stritzinger explained:

A: In other words, for the strategy to play out the right way, I wanted [Sicard] to be extra motivated [to have the] discussion with me. . . .
Q: So . . . you were hoping that Jeff Besch could be utilized to help, somehow heighten or foster interest in Ron Sicard to . . . look at this merger [of ASE into STC] favorably?
A: Correct.
* * *
Q: . . . [Y]ou could have used Jeff to help at least raise the interest or raise the anxiety with the prospect of him leaving?
A: I absolutely wanted [Sicard] to meet with me and to be interested in having a discussion, yes.

Additionally, Besch deposed that Stritzinger suggested not setting a firm date for Besch’s termination with ASE, partially because of the possibility of Sicard and some of his staff becoming employed by STC. Thus, the evidence indicates that Stritzinger enlisted Besch temporarily to conceal from Sicard, while still working at ASE, the news that Besch would be leaving ASE so that Sicard would be motivated to discuss a merger of ASE into STC or to become employed by STC along with some of his staff. No merger or hiring of any other employees occurred, however.

In October 1999, Stritzinger sent a letter to ASE that purported to terminate the Consulting and Reseller Agreements. ASE protested the terminations.

ASE sued Stritzinger, STC, and Solomon originally for breach of certain policies, breach of the Reseller Agreement, and tortious interference with Besch’s employment contract. After defendants moved for summary judgment on all counts, ASE amended its complaint to drop the “breach of certain policies” claim and added a claim for breach of the Consulting Agreement and a claim for breach of fiduciary duty arising out of an alleged confidential relationship between Solomon and ASE. The court entered summary judgment in defendants’ favor on all counts of the amended complaint.

1. ASE first claims error in granting summary judgment on the two new counts found in the amended complaint — which was filed after defendants moved for summary judgment — in that defendants did not refile their motion to deal with the two new counts. It further notes that defendants did not file a new motion for summary judgment 30 days prior to the grant of the motion. ASE concedes, however, that defendants “did attempt to discuss the new counts [of the complaint] in their reply brief” filed prior to the hearing on the motion.

ASE relies on Paino v. Connell, 207 Ga. App. 553-554 (3) (428 SE2d 446) (1993), where the day before the hearing on the defendants’ motion for summary judgment the plaintiff amended his complaint to add four counts. We reversed the grant of summary judgment on the additional counts, holding that “the trial court committed procedural error by granting summary judgment as to appellant’s amended complaint. No motion for summary judgment as to the four additional claims . . . had been made 30 days prior to the trial court’s grant of summary judgment.” (Citation omitted.) Id. at 554 (3).

In Paino, however, the question of the effect of the amendment was addressed at the hearing on the motion for summary judgment. Id. Here, on the other hand, not only did ASE fail to raise — either during the hearing or in its post-hearing brief — any concern that defendants had not refiled their motion to deal with the amendment, it affirmatively argued the two new counts introduced by the amendment, both orally and in its post-hearing brief. Accordingly, by arguing the new matters as before the court as a proper subject of the motion for summary judgment, it waived any argument on appeal that the matters were improperly considered by the court. “A party cannot complain of a result which he aided in causing. [Cits.]” KDS Properties v. Sims, 234 Ga. App. 395, 400 (4) (506 SE2d 903) (1998).

2. ASE next claims that there was a genuine issue of material fact as to its contention that there was a confidential relationship between ASE and Solomon. It contends this relationship gave rise to a fiduciary duty of Solomon to ASE that Solomon breached “by hiring Besch and by improperly terminating its support of [ASE].” It also contends that, because of this confidential relationship, Solomon’s failure to disclose to ASE its hiring of Besch was fraudulent. We hold, however, that ASE’s evidence as to the existence of the claimed confidential relationship was insufficient to create a jury issue on these claims. See Hansen v. Cooper, 253 Ga. App. 533, 535 (559 SE2d 740) (2002).

ASE relies on OCGA § 23-2-58, which provides:

Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

The evidence shows that the relationship between ASE and Solomon, close and lengthy as it might have been, was merely a business relationship between two independent concerns. As we stated in Bogle v. Bragg, 248 Ga. App. 632, 637-638 (1) (548 SE2d 396) (2001), “[t]he mere fact that one reposes trust and confidence in another does not create a confidential relationship. A confidential and fiduciary relationship must be shown by proof, and the burden is upon the party asserting the existence of such relationship to affirmatively show the same.” (Punctuation and footnote omitted.) See O’Neal v. Home Town Bank &c., 237 Ga. App. 325, 330 (5) (514 SE2d 669) (1999).

The Consulting Agreement provided that ASE was not TLB’s representative or agent and vice versa and that “this Agreement does not establish a partnership or joint venture and [ASE] shall not refer to itself as the agent, dealer or distributor of TLB.” The Reseller Agreement provided that ASE was an independent contractor and not an employee or agent. In Allen v. Hub Cap Heaven, 225 Ga. App. 533, 537 (4) (484 SE2d 259) (1997), we held that no confidential relationship existed where “[t]he franchise contract expressly provided for an independent contractor relationship between Hub Cap Heaven and its franchisees.” Moreover, as in that case, here “the parties were engaged in a transaction with each other in an effort to further their own separate business objectives.” (Citations, punctuation and emphasis omitted.) Id.

We thus hold that the trial court did not err in granting summary judgment against ASE on these claims.

3. (a) ASE contends that there was a genuine issue of material fact as to its claim that Solomon breached the Reseller Agreement. ASE first argues that the Addendum to the Reseller Agreement limited the rights of termination that Solomon had under the Reseller Agreement by providing that Solomon could terminate the Addendum if, among other things, ASE committed a material breach of the Addendum or the Reseller Agreement and failed to remedy the breach within 30 days after notice of it is given. Setting aside defendants’ argument that ASE failed to make this argument below, the Addendum cannot reasonably be construed as ASE suggests, as it also provides that Solomon may immediately terminate the Addendum upon termination of the Reseller Agreement.

ASE argues that Solomon’s termination letter failed to specify which agreement it was terminating in that it merely referred to “a certain Agreement executed between you and Solomon Software.” The letter also states, “[i]f you think this termination is inaccurate and wish to continue as a Solomon Software Reseller or Consultant, please contact me. . . .” Accordingly, the letter was clearly intended to terminate both the Reseller Agreement and the Consulting Agreement. ASE’s response does not dispute that intention.

ASE contends, finally, that it did not receive the 30 days notice of termination required by the Reseller Agreement, in that its account with Solomon was terminated on the twenty-ninth day following the date of the letter. That twenty-ninth day, however, was a Friday, and Sicard admits that there were no sales he could have made the following day. Accordingly, it appears that no damages arose from defendants’ failure to provide the full 30 days notice. See Smith v. Geiger, 217 Ga. App. 165, 168 (2) (456 SE2d 636) (1995) (“Even if notice outside the 30 days constituted a breach of the lease . . . , there is no suggestion of damage to the landlords by the later notice. . . .”).

We thus hold that the trial court did not err in granting summary judgment against ASE on this claim.

(b) ASE claims that there was a genuine issue of material fact as to whether Solomon breached the Consulting Agreement by decerti-fying ASE without providing the 30 days notice of termination required by that agreement. This claim depends upon ASE’s contention that “[n]o written notice of termination was ever provided to [ASE].” ASE’s claim fails because, as held in Division 3 (a) above, the termination letter terminated the Consulting Agreement as well as the Reseller Agreement.

4. ASE next contends that there was a genuine issue of material fact as to its claim that defendants intentionally interfered with its (relationship with Besch as its employee. In American Bldgs. Co. v. Pascoe Bldg. Systems, 260 Ga. 346, 348-349 (2) (392 SE2d 860) (1990), the Supreme Court of Georgia set out the permissible standards for a competitor’s inducing an at-will employee to leave his existing employment and join the competitor:

[T]here are limits to the kinds of inducement of at-will employees which may be permitted[,,and we] have adopted the theory of privilege as set out in the Restatement, Torts, § 768. . . . The competitor’s privilege is lost . . . when wrongful means in the solicitation of employees are utilized. Such wrongful means generally involve predatory tactics such as . . . fraud or misrepresentation. . . .

(Citations and punctuation omitted.)

ASE submitted no evidence to create a jury issue as to whether Stritzinger used such “wrongful means” in his solicitation of Besch. The only “wrongful means” asserted by ASE was Stritzinger’s successful enlistment of Besch to conceal, for Stritzinger’s admittedly self-interested motives in relation to the hoped-for merger or hiring of other employees, the news of Besch’s having been hired away from ASE. Yet neither the merger nor the hiring of additional employees occurred. Since financial injury must result from the wrongful action, without damages the claim fails. See Athens Intl. v. Venture Capital Properties, 230 Ga. App. 286, 288 (2) (495 SE2d 900) (1998) (setting forth “financial injury” element of tortious interference claim); see also Conner v. Hart, 252 Ga. App. 92, 95 (1) (a) (555 SE2d 783) (2001) (“[E]ven if [defendant] did conceal some aspects of the sale from [plaintiff, she] suffered no injury. . . . [T]he sale . . . never closed.”).

Decided June 18, 2002.

Cauthorn & Associates, Thomas E. Cauthorn III, Melissa M. Nohr, Vanice H. Sikes, Jr., for appellant.

Freeman, Mathis & Gary, T. Bart Gary, Stuart W. Gray, for appellees.

5. Finally, ASE claims that there was a genuine issue of material fact as to its claim that, regardless of the liability of the corporate defendants, Stritzinger was individually liable in tort in connection with the hiring of Besch. ASE, however, has submitted no evidence sufficient to raise a jury issue that any of the defendants committed a tortious act. Thus, this claim also fails.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.

       Where a hearing is held, OCGA § 9-11-56 (c) requires motions for summary judgment to be served at least 30 days before the hearing.


author: Phipps, Judge.

text:
    A02A0120.
    CANBERG et al. v. CITY OF TOCCOA.
    (567 SE2d 21)
   Phipps, Judge.

Robert and Kay Canberg sued the City of Toccoa for failing to respond to a fire that completely destroyed their home. The City sought summary judgment on the Canbergs’ claims for negligent infliction of emotional distress, intentional infliction of emotional distress and loss of consortium. The trial court granted the City’s motion and dismissed those claims. We agree that the City was entitled to summary judgment on the Canbergs’ claim for negligent infliction of emotional distress and affirm that ruling. We find that the City was not entitled to summary judgment on the Canbergs’ intentional infliction of emotional distress claim or on Robert Canberg’s loss of consortium claim and reverse the trial court’s rulings on those claims.

As of the date the Canbergs’ house caught fire, it had been annexed into the municipal limits of the City of Toccoa for at least two years. The City of Toccoa was notified of the fire within minutes after it started. Due to an erroneous determination that the Canbergs’ home was not within the city limits, the city fire department did not respond at all, despite repeated calls, until 25-30 minutes after the fire was initially reported. In the interim, two volunteer fire departments responded to and began fighting the fire. When city firefighters did arrive, they refused to fight the fire because they did not believe that the Canbergs’ home was within the city limits, even though it was their department’s duty to know the city limits.

Robert Canberg attempted to convince the City’s assistant fire chief to let the city firefighters help fight the fire. When Canberg realized why they were not helping, he pointed out that they had a city garbage can in their driveway. The assistant fire chief remained unmoved, responding that anyone could obtain a garbage can and recycling container and put them in the driveway to try to convince people that the house was inside the city limits.

The Canbergs testified that they watched in shock and horror as their home burned. Kay Canberg’s eyes burned and watered from the smoke and heat of the fire. The smoke almost choked Robert Canberg and caused his eyes to water, sting and burn.

When ruling on a motion for summary judgment, a trial court should give the party opposing the motion the benefit of all reasonable doubt and construe the evidence most favorably toward that party. When reviewing the grant of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

1. The Canbergs claim that the trial court erred by granting summary judgment to the City on their claim for negligent infliction of emotional injury.

“In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Georgia’s current impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress. The failure to satisfy all three elements has proven fatal to recovery.

Although the Canbergs have alleged a physical impact (the smoke and fire from their home) and physical injuries caused by the smoke and fire, they do not claim that their physical injuries caused their mental suffering or emotional distress. Thus, they have failed to satisfy the third element of the impact rule. And their claims do not fit clearly within a recognized exception to this element of the impact rule.

A grant of summary judgment must be affirmed if it is right for any reason. The trial court did not err in granting summary judgment to the City on the Canbergs’ claim for negligent infliction of emotional injury.

2. The Canbergs claim that the trial court erred by granting summary judgment to the City on their claim for intentional infliction of emotional distress.

A plaintiff can recover for emotional distress without the necessity of a physical injury if the conduct was malicious, wilful or wanton and was directed toward the plaintiff. The trial court granted summary judgment on this claim based on its determination that there was no evidence that the City directed any action or inaction toward the Canbergs. We cannot agree.

When city firefighters arrived at the Canbergs’ home, refused to help fight the fire despite being presented with evidence that the house was within the city limits and essentially accused the Canbergs of attempting to defraud the City by taking a city garbage can and placing it in their driveway, those actions (and failures to act) were directed at the Canbergs.

Construing the evidence most strongly against the City as mov-ants on motion for summary judgment, we conclude that a jury might reasonably consider the City’s actions “sufficiently outrageous and egregious to support an award of damages for intentional infliction of emotional distress.” Thus, the trial court erred in granting summary judgment to the City on the Canbergs’ claim for intentional infliction of emotional distress.

3. The Canbergs contend that the trial court erred by granting summary judgment to the City on Robert Canberg’s loss of consortium claim.

One spouse’s claim for the loss of the other spouse’s consortium derives from the right of the other spouse to recover for her injuries. Because Kay Canberg’s claim for intentional infliction of emotional distress survives, Robert Canberg’s loss of consortium claim also survives.

Decided May 24, 2002

Reconsideration denied June 19, 2002

Earle W. Angelí, Alton M. Adams, for appellants.

McClure, Ramsay, Dickerson & Escoe, John A. Dickerson, Clifton, Sanders & Smith, Janney E. Sanders, for appellee.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Mikell, J, concur.

       See Canberg v. City of Toccoa, 245 Ga. App. 75 (535 SE2d 854) (2000) (prior appeal in which we reversed the trial court’s dismissal of five counts of the complaint based on our determination that the Canbergs had substantially complied with the ante litem notice requirements of OCGA § 36-33-5 (b)).

        Bulloch South, Inc. v. Gosai, 250 Ga. App. 170 (550 SE2d 750) (2001).

       Id.

        Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

       See Lee v. State Farm &c. Ins. Co., 272 Ga. 583, 586 (533 SE2d 82) (2000).

       Id.

       See id. at 588 (when a parent and child sustain physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent).

        Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) (1994).

        Ryckeley, supra at 828-829.

        S & W Seafoods Co. v. Jacor Broadcasting &c., 194 Ga. App. 233, 236 (2) (390 SE2d 228) (1990).

       See id. at 237.

        Supchak v. Pruitt, 232 Ga. App. 680, 684 (4) (503 SE2d 581) (1998).


text:
    A02A0321.
    O’CONNOR v. THE STATE.
    (567 SE2d 29)
   Phipps, Judge.

A jury found Catherine Amanda O’Connor guilty of affray, aggravated assault, and voluntary manslaughter after she cut and killed Richard Seay during a fight. She contests the sufficiency of the evidence, jury instructions on her defense of justification, and the denial of her motion for new trial. Finding the evidence sufficient and finding no reversible error, we affirm.

Construed in a light most favorable to the jury’s verdict, the evidence showed that on March 27,1998, Michael Brown and his former girlfriend, Courtney Hulsey, engaged in heated arguments on the telephone. Others participated on each end of their arguments, and threats were exchanged. Brown and four friends, including Seay, went to confront Hulsey and her supporters.

Hulsey and some of her supporters were outside when O’Connor, who had not yet met Hulsey, arrived and sat on the porch. In response to the group’s comments about Brown coming over, O’Connor placed a knife on her belt loop, pulled her shirt over it, and announced, “111 handle it. I’ll take care of it.”

Ten minutes later, Brown and his friends arrived. Brown and two friends stood in the yard during a shouting match. Although Seay had initially stayed in the car, at some point, he had stepped out and told his friends to get back inside. When the shouting match subsided, they began walking back to the car. Then Hulsey approached Brown. An argument erupted, and Brown pushed her to the ground.

At that point, O’Connor muttered, “Oh, hell, no,” jumped off the porch, and approached the others. Seay punched O’Connor, who fell back, bent over, and then reached toward his neck and chest. They wrestled to the ground and exchanged blows, with Seay on top of O’Connor. Brown and a friend ran to the two and kicked O’Connor.

Police arrived, and the crowd dispersed. Seay took a few steps and then collapsed. He had sustained a fatal knife wound to his neck. O’Connor’s blood-spattered knife was later found hidden, and a forensic pathologist who conducted an autopsy testified that the knife could have caused the wound.

As O’Connor walked past Hulsey on her way to an ambulance, she said, “Bitch, I’ll get you next.” The next day, while O’Connor was at the sheriff’s department to have photographs taken of her injuries, she recognized someone and attempted to go toward him. When the escorting officer grabbed her arm, she said, “Get your hands off me or I’ll gut you too.”

At trial, O’Connor presented no evidence. Her attorney urged during closing argument that she had been justified in using deadly force.

1. O’Connor contests the sufficiency of the evidence, arguing that the State failed to disprove that she acted with justification.

A person is justified in using force intended or likely to cause death or great bodily harm only if she reasonably believes that such force is necessary to prevent death or great bodily injury to herself or a third person or to prevent the commission of a forcible felony. Justification provides no defense, however, to a person who was the aggressor or who was engaged in combat by agreement, unless the person had effectively withdrawn from the encounter and the other person continued or threatened to continue to use unlawful force. Combat by agreement occurs where there is a mutual intent by the accused and another to fight. This intent may be inferred from the acts and conduct of the parties, as well as the circumstances before, during, and after the commission of the crime. The question of intent is for the jury.

The evidence showed that when O’Connor learned that Brown was coming, she armed herself with a knife and vowed to “handle” or “take care” of the situation. As the confrontation escalated, O’Connor walked into it and engaged in fighting with Seay, who also had walked into it. There was no evidence that O’Connor at any time withdrew from the encounter. And afterward, she threatened to “get” and “gut” others. The jury was authorized to reject O’Connor’s defense of justification.

On appeal, O’Connor in effect asks us to reweigh the evidence to place greater credence in her justification defense than did the jury. She points out that there was no eyewitness testimony as to how she stabbed Seay, urging that she wielded the knife in self-defense. But the jury could have found that the circumstantial evidence excluded any other reasonable hypothesis except that of O’Connor’s guilt. This court does not weigh the evidence or assess the credibility of witnesses; rather, we determine whether the evidence, viewed in a light most favorable to the verdict, was legally sufficient under the standard of Jackson v. Virginia . The record reveals ample direct and circumstantial evidence from which a rational trier of fact could have found O’Connor guilty beyond a reasonable doubt of voluntary manslaughter, aggravated assault, and affray.

2. O’Connor contends that the jury charges on justification and the “combat by agreement” exception were erroneous, inappropriate, misleading, confusing, and harmful.

(a) O’Connor argues that the trial court erred by equating “combat by agreement” to “mutual combat.” The court charged, “A person is not justified in using force if that person initially provokes the use of force against herself with intent to use such force as an excuse to inflict bodily harm upon the assailant or [if] such person was the aggressor or was engaged in combat by agreement or mutual combat.” With the exception of the final phrase “or mutual combat,” the charge closely tracked both the pertinent portions of OCGA § 16-3-21 (b) concerning justification exceptions and the standard charge on justification exceptions found in the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 3, § AA (2nd ed. 1991). We reject O’Connor’s contention that the added words rendered the instruction erroneous and harmful. Furthermore, the record demonstrates that the charge as a whole adequately and fairly explained that the “combat by agreement” exception to justification required a finding that the accused and another mutually intended to fight.

(b) O’Connor claims that it was error for the trial court to instruct the jury that it was irrelevant who struck the first blow. This claim is without merit.

(c) O’Connor complains of the trial court’s answer to the jury’s question: “Can you have mutual combat and justification?” The court answered, “[N]o. It’s either justified or it’s mutual combat.” O’Connor complains that the court should have explained that the two are not mutually exclusive where the defendant had effectively withdrawn from the encounter, yet the other person continued to or threatened to continue to use unlawful force.

However, during the charge conference, O’Connor’s attorney stated that that portion of the standard charge on justification was not adjusted to the facts and that it should be omitted. We agree that there was no evidence supporting that portion of the charge, and thus the court did not err by not giving it. Moreover, because the omission was self-induced, O’Connor cannot complain about it on appeal.

(d) O’Connor challenges the trial court’s response to the jury’s question: “[C]an a defendant enter into a mutual combat and be guilty of involuntary manslaughter?” The court answered, “[y]es,” and then explained, “The defense of justification applies to every grade of homicide and assault. And therefore the exception to justification would apply to those same things. The exception to justification would be mutual combat, where the parties mutually agreed to fight, not in self-defense but an agreement to fight.” O’Connor takes exception to the court’s next statements concerning “affray,” which also served as the predicate offense for the lesser included offense of involuntary manslaughter. The court continued, “if you find the Defendant guilty of an affray, then you would have found there was a mutual combat. Because justification also applies to affray.”

O’Connor asserts that the original charge defining affray provided no instruction that the offense required an intent to fight. She argues that by equating affray, as deficiently defined, to mutual combat, the court deprived her of her justification defense because it failed to make it clear to the jury that merely fighting to repel an unprovoked attack is not mutual combat.

“The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” Considering the jury charge as a whole, we find O’Connor’s argument without merit. Immediately before the contested language, the court reminded the jury that mutual combat required a finding that “the parties mutually agreed to fight, not in self-defense.” Immediately after the contested language, the court stated, “Just because you’re fighting in public does not mean you cannot be justified. If you are justified, then you’re not guilty of affray. Again, it addresses itself to the criminal intent element of the offense. In other words, the law does not prohibit you from defending yourself just because you’re in a public place.” And contrary to O’Connor’s assertion otherwise, the court did instruct the jury in its original charge that a violation of the affray statute required an accompanying “intention to act.” We are satisfied that the charge as a whole adequately and fairly conveyed to the jury that merely fighting to repel an unprovoked attack did not constitute the “combat by agreement” exception to justification.

Decided May 30, 2002

Reconsideration denied June 19, 2002

James C. Bonner, Jr., Mitchell D. Durham, for appellant.

Garry T. Moss, District Attorney, Allen D. Morris, Assistant District Attorney, for appellee.

3. O’Connor contends that the trial court erred in entertaining and overruling her amended motion for a new trial without affording her attorney an opportunity to review the trial and sentencing transcripts. O’Connor, however, has failed to demonstrate specifically how the lack of the transcripts harmed her. Absent such a showing, there is no reversible error.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       OCGA § 16-3-21 (a).

       OCGA § 16-3-21 (b) (3).

       See Roberts v. State, 215 Ga. App. 881, 882 (452 SE2d 570) (1994); Pendergrass v. State, 199 Ga. App. 467 (405 SE2d 297) (1991); Johnson v. State, 135 Ga. App. 360, 361-362 (3) (217 SE2d 618) (1975).

        Hanifa v. State, 269 Ga. 797, 809 (8) (505 SE2d 731) (1998); Pendergrass, supra.

        Pendergrass, supra.

       See Johnson v. State, 236 Ga. App. 61, 63 (1) (510 SE2d 918) (1999).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Johnson, supra, 236 Ga. App. at 63-64.

       See OCGA §§ 16-5-2 (a); 16-5-21 (a) (2); 16-11-32 (a); Smith v. State, 249 Ga. App. 736, 737-738 (550 SE2d 106) (2001); McGuire v. State, 243 Ga. App. 899, 900 (1) (534 SE2d 549) (2000); Johnson, supra, 236 Ga. App. at 63-64; Miller v. State, 223 Ga. App. 311, 312 (477 SE2d 430) (1996).

       See Pendergrass, supra (using term “mutual combat” in explaining “combat by agreement”); OCGA § 16-3-21 (b) (3).

       See Pendergrass, supra.

       See Harris v. State, 183 Ga. App. 219, 220 (1) (358 SE2d 634) (1987).

       See Emerson v. State, 222 Ga. App. 596 (1) (474 SE2d 638) (1996).

       As a lesser included offense, the court had charged the jury on involuntary manslaughter.

       OCGA § 16-11-32 (a) defines “affray” as “the fighting by two or more persons in some public place to the disturbance of the public tranquility.” An essential element of affray is the intent to fight, and it is not unlawful to fight in public where there is no intention of doing so; the automatic reflexes of any individual would cause him to push back the thing that is about to destroy him. Johnson, supra, 135 Ga. App. at 361-362. Where a party fights entirely in self-defense, he is not guilty of an affray. Drake v. State, 159 Ga. App. 606, 607 (2) (284 SE2d 109) (1981).

       (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 350 (2) (548 SE2d 78) (2001).

       See Cunningham v. State, 244 Ga. App. 231, 233 (1) (535 SE2d 262) (2000).


text:
    A02A0145.
    GROSSMAN v. BROWN & WEBB BUILDERS, INC. et al.
    (567 SE2d 116)
   Ruffin, Judge.

Robert Grossman sued Brown & Webb Builders, Inc. (“Brown & Webb”) for breach of contract, negligence, breach of warranty, fraud, and negligent misrepresentation relating to the installation of synthetic stucco on his newly constructed home. Brown & Webb moved for summary judgment on all counts, and the trial court granted the motion. On appeal, Grossman challenges only the trial court’s ruling as to his breach of express warranty claim. Finding no error, we affirm.

To succeed on summary judgment, the moving party must demonstrate that no genuine issues of material fact remain and that the evidence, construed in the light most favorable to the nonmoving party, warrants judgment as a matter of law. Viewed in this manner, the record shows that, on September 21, 1993, Grossman contracted to purchase a new home constructed by Brown & Webb. The parties executed a new construction purchase and sale agreement, which provided, in part, that “[a]t closing, or a reasonable time thereafter, [Brown & Webb] will provide to [Grossman] a One Year Warranty on the improvements.” Exhibit A to the contract further stated:

[Brown & Webb] agrees to deliver to [Grossman], at closing or within a reasonable time thereafter, a One Year warranty for the Property, and [Grossman] agrees to accept the aforementioned warranty. [Brown & Webb] disclaims any and all implied warranties of merchantability and fitness or habitability as to the Property and in the place of such warranties ... is the warranty described above as the sole warranty being given by [Brown & Webb] to [Grossman. Grossman] agrees that [Brown & Webb] shall not be liable for any defects not specifically provided for in the warranty described above.

The parties closed the sale on November 19, 1993. Over the next 12 months, Grossman submitted numerous written requests to Brown & Webb to repair various problems with the house. According to Grossman, he also spoke with Brown & Webb by telephone about needed repairs “during the first year after closing, and afterward.” Brown & Webb attempted to remedy the reported problems.

In 1997 or 1998, Grossman noticed that 12 to 15 windows in his home had broken seals or rotten sills. He hired several home inspectors and learned that the synthetic stucco — also referred to as the Exterior Insulation and Finish System — had been improperly applied to the house. One inspector testified that this incorrect application had damaged the house and that Grossman’s repair requests to Brown & Webb “should have placed [the builder] on notice of the deficiencies in the [synthetic stucco].”

Grossman sued Brown & Webb on July 19, 2000, alleging, among other things, that Brown & Webb breached its express warranty relating to the home. Brown & Webb moved for summary judgment, arguing initially that the statute of limitation barred all of Gross-man’s claims. Grossman countered that he timely filed his claim that Brown & Webb breached the one-year written warranty referenced in the sales contract. In response, Brown & Webb noted that the record contained no evidence of this warranty or its terms. According to Brown & Webb, because Grossman did not make the warranty agreement part of the record, the trial court could not “examine the terms of the warranty, [determine] whether the warranty was breached, nor scrutinize any particular provision which may or may not have been satisfied by the builder.”

The trial court agreed with Brown & Webb, finding that it could not consider whether the builder breached this one-year written warranty because the record lacked evidence that this warranty, in fact, existed. The court noted that, although the sales contract referenced an intention to create a one-year warranty, Grossman did not present evidence that Brown & Webb actually delivered a written warranty to him. Thus, the court concluded, “[w]ithout any evidence as to what would have been covered by a warranty and the notice provisions that [would] have been applicable, there is no way for the Court to determine the existence of or date of a breach.”

1. Grossman first argues that Brown & Webb failed to pierce his pleadings on summary judgment with respect to his written warranty allegation. In Grossman’s view, because Brown & Webb neglected to offer evidence relating to this claim, the builder did not meet its summary judgment burden, and the burden of producing evidence never shifted to him. He similarly argued below that Brown & Webb’s summary judgment pleadings were insufficient because it “put forward no evidence that there was no warranty.”

We disagree. A defendant who does not bear the burden of proof at trial need not produce evidence or disprove the plaintiff’s claim on summary judgment. Rather, the defendant meets its summary judgment burden “by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the [plaintiff’s] case.” Brown & Webb did just that, asserting that the record lacked evidence of the one-year warranty on which Grossman based his express warranty claim. The burden thus shifted to Grossman to “point to specific evidence giving rise to a triable issue” on this claim.

2. On appeal, Grossman admits that the written warranty does not appear in the record, and he has cited no testimony relating to the warranty, its delivery, or its terms. Even Grossman’s own affidavit fails to mention a one-year written warranty. Nevertheless, he argues that the record contains sufficient evidence of this written warranty to create a factual issue and defeat summary judgment. Specifically, he asserts that (1) the sales contract includes two references to the one-year warranty, (2) he made numerous repair requests to Brown & Webb during the year following closing, and (3) Brown & Webb attempted repairs on several occasions.

Pretermitting whether this circumstantial evidence raises questions of fact regarding the warranty’s existence, it sheds no light on the terms of the warranty, which are critical to Grossman’s claim. Under the purchase and sale agreement, Brown & Webb was liable only for defects described in the warranty. Without some evidence of the warranty’s terms, we do not know which defects fell within the warranty. Furthermore, Grossman’s written repair requests do not mention the one-year written warranty. Instead, they refer to “punch lists,” “repair lists,” or “items requiring attention.” The requests thus provide no evidence that these repairs were sought and performed under the alleged written warranty, and they offer no insight into the warranty’s terms.

We recognize that reasonable evidentiary inferences can raise a sufficient issue of material fact to preclude summary judgment. A party, however, cannot avoid summary judgment by citing “[a]n inference based on mere possibility, conjecture, or speculation.” Here, nothing in the record sets forth the terms of the written warranty. The evidence simply does not raise a question of fact as to what the written warranty covered, and it is impossible to infer that the terms of this warranty might have been breached. Accordingly, the trial court properly granted Brown & Webb summary judgment on Grossman’s breach of express warranty claim.

Decided June 19,2002.

Charles F. Peebles, Kennon Peebles, Jr., for appellant.

Downey & Cleveland, George L. Welborn, David T. Markle, for appellees.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       Grossman also sued Precision Plastering, Inc. (“Precision”), the company that applied the synthetic stucco. Precision moved for summary judgment, which the trial court granted. Because Grossman does not challenge that ruling on appeal, we will not address it here.

       See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       See id.

       Id.

       Id.

       See Patrick v. Macon Housing Auth., 250 Ga. App. 806, 809 (552 SE2d 455) (2001).

       Id. See also John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 864 (522 SE2d 270) (1999) (“ ‘Guesses or speculation which raise[s] merely a conjecture or possibility [is] not sufficient to create even an inference of fact for consideration on summary judgment.’ ”).

       Cf. Stimson v. George Laycock, Inc., 247 Ga. App. 1, 4 (2) (542 SE2d 121) (2000) (questions of fact regarding whether parties complied with terms of written warranty were raised by copy of warranty in the record, which, Court assumed for purposes of appeal, was identical to warranty the claimants allegedly received from builder); Jordan v. Lamberth, Bonapfel &c., 206 Ga. App. 178, 180 (2) (424 SE2d 859) (1992) (terms of agreement in breach of contract action established by unrebutted affidavit).

       See Mooney v. Mooney, 245 Ga. App. 780, 782 (538 SE2d 864) (2000) (“‘[T]he party asserting the existence of a contract has the burden of proving ... its terms.’ ”).


text:
    A02A0174.
    BEATON v. THE STATE.
    (567 SE2d 113)
   Ruffin, Judge.

Jerry Lee Beaton was charged with five counts of aggravated assault, one count of terroristic threats, and two counts of possession of a firearm during the commission of a crime. Following a trial, a jury found Beaton guilty of four counts of reckless conduct as a lesser included offense of aggravated assault and one count of terroristic threats, but acquitted him of the remaining charges. On appeal, Beaton challenges the sufficiency of the evidence. Beaton also asserts that the trial court erred in charging the jury, admitting certain evidence, and in imposing an illegal sentence. For reasons that follow, we affirm the judgment, but vacate the sentence in part and remand for resentencing.

Viewed in a light to support the verdict, the evidence shows that Beaton and Denise Cauthran were married and had three children. The two eventually divorced, and Beaton began harassing Cauthran. On one occasion, he went to her house, threw her from her front porch, and beat her until she lost consciousness.

On June 16, 1999, Beaton called Cauthran and told her he was on his way over to deliver money for child support. According to Cauthran, she would no longer let Beaton in the house because she was afraid that he would kill her. When Beaton arrived, Cauthran sent her oldest child to speak to his father. The child returned and said that Beaton wanted to take the children out to dinner.

After the children left the house, Cauthran saw Beaton walking up to the house. When he reached the front door, he began turning the knob. To prevent Beaton from entering, Cauthran ducked under his arm and met him on the porch. Beaton told Cauthran that they needed to talk, and she said that they could talk on the porch. When Cauthran refused to let Beaton inside the house, he pulled out a gun and told Cauthran that he had “come over ... to blow [her] f —king head off and [he did not] want to do it in front of [his] kids.”

Cauthran tried to calm Beaton, who agreed to put the gun down. At this point, the children were still in the yard. Cauthran told them to go to a neighbor’s house. After the children left, Beaton told Cauthran he was “tired of messing with” her and that he was “going to blow her head off right here.” When Beaton turned around to pick up the gun, Cauthran ran to her neighbor’s house, and the neighbor called the police.

Officer Greg Beaty, who responded to the call, discovered Beaton on the front porch. Beaty ordered Beaton to walk toward him with raised hands “so [he] could make sure [Beaton] wasn’t armed.” Beaton refused and went inside the house. Beaty took cover behind Beaton’s car in the driveway, and other law enforcement officers arrived and positioned themselves around the house. Deputy Gwen Maynor positioned herself at the front corner of the house. Detective Alan Miles moved to the rear of the house. Detective Vic Wells sat in his car in the driveway. Lieutenant John Gass joined Beaty behind Beaton’s car in the driveway. And Officer Scott Jordan moved to the corner of the neighbor’s house.

Beaton remained inside, waved his gun out of a front window, and threatened to shoot anyone who approached the house. He then fired a 9 millimeter pistol through the front door of the house. Eventually, a SWAT team was called in, and they flushed Beaton out of the house with tear gas.

1. In his first enumeration of error, Beaton argues that the trial court erred in denying his motion for acquittal on the five aggravated assault charges. Here, however, the jury convicted Beaton of four counts of reckless conduct, which is a lesser included offense of aggravated assault. And, having convicted Beaton of the lesser included offense, the jury implicitly acquitted him of the greater charge. Such acquittal renders any challenge to the sufficiency of the evidence supporting the greater charge — aggravated assault — moot.

2. Beaton also contends that there was insufficient evidence to support his four convictions for reckless conduct. OCGA § 16-5-60 (b), which criminalizes reckless conduct, provides that

[a] person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.

Beaton essentially alleges that the evidence shows that the bullet did not come close enough to any of the victims to endanger their safety. Beaton’s allegation lacks merit.

“The dangers posed by . . . senseless use of firearms cannot be overstated.” In this case, the evidence shows that Beaton fired a shot through the front door when he knew that there were multiple people outside the house. In so doing, Beaton disregarded the very real risk that the bullet could strike any one of those persons, and his conduct endangered them all. Under these circumstances, the jury was authorized to conclude that he was guilty of reckless conduct.

3. In a related enumeration of error, Beaton contends that the trial court erred in charging the jury that he could be found guilty of four separate counts of reckless conduct. According to Beaton, the act of firing a single shot constitutes a single crime, notwithstanding the number of victims. We disagree.

“[T]he legislature did not intend one crime to be included within another if each crime affected a different person.” Here, there were four officers present, and Beaton owed a separate duty to each officer to not endanger his or her safety. When Beaton fired the shot through the front door of the house — heedless of the consequences — he risked hitting any of those officers. Thus, he endangered them all and may be charged and convicted accordingly.

The case cited by Beaton, Balkcom v. Defore, does not require a different result. In Balkcom, the Supreme Court concluded that a father who abandoned his five children was guilty of one act of abandonment. The Supreme Court reasoned that the abandonment constituted one offense because the duty the father owed was to the children, collectively, rather than to each child, individually. In that same case, however, the Supreme Court noted that it was possible for a single act to constitute more than one criminal offense. As an example, the Supreme Court specified that “the firing of a single shot toward or at a group” would constitute multiple offenses. This is so because the gunman owes “a separate duty to each member of society on whose interest the act [of shooting] infringed.” Thus, the very case upon which Beaton relies eviscerates his claim of error.

4. In his third enumeration of error, Beaton contends that the trial court erred in admitting evidence of a prior difficulty between him and his ex-wife. Specifically, Beaton cites Cauthran’s testimony regarding the time Beaton threw her from her front porch and beat her until she lost consciousness.

Beaton was charged with terroristic threats against his ex-wife. Thus, the evidence regarding his prior assault against her was admissible as a prior difficulty. On appeal, Beaton argues that the trial court was required to treat the prior difficulty as a similar transaction and analyze it accordingly. We find this argument unavailing. “ ‘There is no requirement that the prior difficulty constitute a similar transaction.’ ” And the trial court was not obligated to treat it as such. It follows that this claim of error presents no basis for reversal.

5. In a related enumeration of error, Beaton asserts that Cauthran’s testimony regarding the prior difficulty “was made even more prejudicial in light of the fact that [her] mother cried during the testimony in full view of the jury.” The record reflects that Beaton’s attorney informed the trial court that the mother was crying, and the court had the bailiff tell the mother that she had to leave the courtroom if she could not “control herself.” Evidently, the mother stopped crying, and no additional action was taken.

We are unable to discern any error in the trial court’s conduct. Our Supreme Court has held that a trial court does not abuse its discretion in denying a mistrial under similar circumstances. Here, however, Beaton neither requested a mistrial nor objected to the trial court’s curative action. Accordingly, he has waived any error with respect to these issues. To the extent Beaton argues that the mother’s crying compounded the error of admitting evidence of the prior difficulty, this argument lacks merit. As discussed in Division 4, the trial court did not err in admitting this evidence. Thus, there was no error to compound.

Decided June 19, 2002.

Levitt & Levitt, Lloyd A. Levitt, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

6. In his final enumeration of error, Beaton contends that the trial court imposed an illegal sentence. With regard to two of the reckless conduct convictions, the trial court sentenced Beaton to serve twelve months in a detention center. According to Beaton, the law does not permit the court to sentence him to incarceration in a detention center for a misdemeanor. We agree.

In Brady v. State, the trial court sentenced the defendant to serve 12 months in a detention center for a misdemeanor reckless conduct conviction. This Court noted that nothing in OCGA § 17-10-3, which pertains to punishment for misdemeanors, “allows a court to direct that a misdemeanant serve a term of incarceration in a probation detention center.” Although the legislature subsequently amended that Code section to provide for such sentencing, the amendment was not effective until January 1, 2001. As the legislature has made clear that the amendment is not retroactive, it does not apply. Accordingly, Brady controls, and we vacate Beaton’s sentence for the two counts of reckless conduct and remand the case for resentencing.

Judgment affirmed. Sentence vacated in part and case remanded.

Pope, P. J., and Barnes, J., concur.

       The jury acquitted Beaton of reckless conduct against Officer Jordan, who was standing at the neighbor’s house when the shot was fired.

       See Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999).

       See McBride v. State, 247 Ga. App. 767, 771 (2) (545 SE2d 332) (2001).

       See Williams v. State, 246 Ga. App. 347, 351-352 (1) (540 SE2d 305) (2000).

        McDonald, v. State, 224 Ga. App. 411, 412 (481 SE2d 1) (1997).

       See id. at 412-413.

       In his brief, Beaton overlaps his first and second enumerations of error. For the sake of clarity, we address them separately.

       (Punctuation omitted.) Hall v. State, 235 Ga. App. 44, 47 (5) (508 SE2d 703) (1998).

       See, e.g., Powles v. State, 248 Ga. App. 4-5 (1) (a) (545 SE2d 153) (2001) (multiple convictions for aggravated assault do not merge where there are separate victims); Cavender v. State, 208 Ga. App. 61, 62 (1) (429 SE2d 711) (1993) (single shot fired at two people constitutes two acts of aggravated assault).

       219 Ga. 641 (135 SE2d 425) (1964).

       See id. at 642-643 (2).

       See id. at 643 (3).

       See id.

       Id.

       Id.

       See Peterson v. State, 274 Ga. 165, 170-171 (4) (549 SE2d 387) (2001) (“Evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim.”).

        Givens v. State, 273 Ga. 818, 823 (4) (546 SE2d 509) (2001).

       See Cobb v. State, 254 Ga. App. 48, 51 (5) (561 SE2d 124) (2002) (rules regarding similar transactions do not apply to prior difficulties).

       In this enumeration of error, Beaton notes that Cauthran’s testimony also “included testimony concerning an alleged assault [Beaton] made on [her] mother.” Evidently, Cauthran’s mother was injured when she attempted to intervene while Beaton was assaulting her daughter. Pretermitting whether this should have been treated as evidence of a similar transaction, Beaton did not address this contention in his argument and thus has waived the issue on appeal. See Carter v. State, 248 Ga. App. 821, 824 (4) (547 SE2d 613) (2001).

       See Elliott v. State, 190 Ga. 803, 807-808 (2) (10 SE2d 843) (1940).

       See Seidenfaden v. State, 249 Ga. App. 314, 317 (2) (547 SE2d 578) (2001).

       Beaton does not challenge his sentence for the terroristic threat conviction or the two remaining reckless conduct convictions. Thus, we do not address them on appeal.

       246 Ga. App. 412 (541 SE2d 396) (2000).

       Id. at 413.

       See id., n. 1; OCGA § 17-10-3 (g).

       See id.

       See Palacios v. State, 250 Ga. App. 794, 795 (554 SE2d 498) (2001).


author: Mikell, Judge.

text:
    A02A0255.
    LEBBOS v. DAVIS et al.
    (567 SE2d 345)
   Mikell, Judge.

In May 2000, Christopher R. Davis and Sheila T. Cavanagh filed a complaint for declaratory judgment against Betsey Warren Lebbos. Lebbos held a secondary security interest in certain DeKalb County property under a 1985 security deed securing a promissory note in the amount of $4,436.10 from a previous owner of the property, Kathryn E. Atha, to Lebbos. Davis and Cavanagh claim that Atha refinanced and paid her debt to Lebbos in 1987, but that Lebbos never cancelled the security deed, and that her failure to do so jeopardized their interest in the secured property. The trial court granted Davis and Cavanagh’s motion for summary judgment and ordered that the security deed be satisfied and cancelled of record. Lebbos appeals, and we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

In support of their motion for summary judgment, Davis and Cavanagh submitted Atha’s affidavit, in which she avers that “[a]s part of the Refinance, I, through my new second mortgage lender, Chrysler First Credit Corporation, . . . paid off of [sic] the Note and, thereby, satisfied the Security Deed held by Lebbos.” In response, Lebbos’s affidavit states that she has no independent recollection of receiving any payment from Atha and that she has no records concerning the transaction. But Lebbos does not deny that payment was made. Accordingly, the uncontroverted evidence is that Atha paid her debt to Lebbos but that Lebbos never cancelled the security deed. Pursuant to OCGA § 44-14-3 (b) (1), the holder of an instrument securing an indebtedness “shall cause to be furnished to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record.” It follows that the trial court correctly ordered that the security deed be satisfied and cancelled of record.

1. Lebbos’s arguments to the contrary have no merit. She first claims that the trial court lacked personal jurisdiction because she was not personally served. The record shows that the copy of the summons and complaint was left at Lebbos’s California address with “Jim Boyden, who is a cotenant.” The long arm statute allows service outside the state in the same manner as in Georgia for defendants who are subject to personal jurisdiction under the statute, and it applies to Lebbos as holder of a security deed to Georgia real property. Service may be made “to the defendant personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.”

In this case, the sworn return of service of process shows that Lebbos was served by leaving a copy of the summons and complaint with Boyden, who was a “competent member of the household, at least 18 years of age.” “When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. And this is a heavy burden. Return of service constitutes a prima facie showing of personal service. The defendant is apprised by the return of what he must contest.”

Lebbos failed to satisfy this burden. The return of service shows that Boyden was personally served and that he was an adult cotenant at Lebbos’s residence. Further, the address listed on the return matches Lebbos’s California address. Lebbos denies being in California when the service was made and denies that anything was left at her usual place of abode. However, she makes no affirmative showing that the return of service was false. Accordingly, the trial court did not err in denying Lebbos’s motion to dismiss for lack of personal jurisdiction.

2. Lebbos next contends that Davis and Cavanagh have no standing to sue because they allege no interest in the property or in the litigation. Standing to bring a declaratory action requires an actual controversy. Lebbos argues that Davis and Cavanagh have never clarified their specific status with respect to the property. The complaint states that the plaintiffs are “insecure as to the title and property rights in and to the Property” and that further conveyance of the property without judicial direction could “jeopardize the interest of Plaintiffs.” At the hearing on the motion for summary judgment, the attorney for Davis and Cavanagh represented to the trial court that his clients were former owners of the property, had sold it, and were in court to perfect marketable title. A grantor under OCGA § 44-14-3 includes a successor in title. We find Davis and Cavanagh showed an interest in the property sufficient to establish standing to sue for declaratory judgment.

3. Lebbos maintains that the complaint failed to satisfy the requirements of OCGA § 44-14-3 (c.l). This subsection allows a grantor to cancel a secured indebtedness by recording an affidavit of the attorney that caused the indebtedness to be paid, and attaching the cancelled check showing the payment. The affidavit must also be mailed to the grantee. But the requirements of OCGA § 44-14-3 (c.l) are irrelevant because Davis and Cavanagh are not attempting to cancel the security deed through an attorney’s affidavit. The grantor’s right to have the security deed satisfied after the underlying debt is paid is independent of OCGA § 44-14-3 (c.l), which was added to the statute by a 1999 amendment.

4. Lebbos farther claims that the trial court erred in “defaulting” her. This enumeration of error is not supported by argument, and we will consider it abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Decided June 19, 2002.

Betsey W. Lebbos, pro se.

Anderson & Anderson, Wade G. Anderson, for appellees.

5. Lebbos next claims that material facts remain at issue because Davis and Cavanagh failed to show proof that Atha paid the note. Lebbos argues that Atha’s affidavit is hearsay and, therefore, is not competent evidence that the underlying debt associated with the security deed was satisfied. We disagree.

Atha testified from personal knowledge that she refinanced the note through her second mortgage lender. That is not hearsay. But Lebbos argues that, although Atha thought she paid off the loan, she does not know if the mortgage company actually submitted payment to Lebbos. Nevertheless, the refinancing transaction indicates that Atha paid off Lebbos’s note. The burden of coming forward with evidence shifted to Lebbos to show that she never received payment, and Lebbos’s response that she does not recall receiving payment is not evidence that no payment was received. It follows that Davis and Cavanagh were entitled to summary judgment.

6. Lebbos finally claims that the award of attorney fees and costs is error. But this claim presents nothing for review because the order granting summary judgment contains no award of attorney fees.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

       OCGA §§ 9-10-91 (4); 9-10-94. See Regante v. Reliable-Triple Cee of North Jersey, 251 Ga. 629, 630 (1) (308 SE2d 372) (1983).

       OCGA § 9-11-4 (e) (7).

       (Citations and punctuation omitted.) Baughan v. Alaoui, 240 Ga. App. 661, 663 (524 SE2d 536) (1999).

       See In re Doe, 262 Ga. 389, 390 (1) (418 SE2d 3) (1992).

       There is a handwritten order in the record denying Lebbos’s motion to dismiss, which notes that Lebbos did not appear at the hearing on the motion. Lebbos’s motion to dismiss was denied “on its merits.” The “handwritten memo” referred to by Lebbos is an order signed by the judge and filed by the clerk. Lebbos did not file a timely answer, and a default judgment was later orally granted by the trial court at the same time the trial court announced it would grant the plaintiffs’ motion for summary judgment. See OCGA § 9-11-55. But the trial court’s written order only provides for the grant of the motion for summary judgment, although it could be interpreted as including a default judgment, and the parties have briefed the appeal as one from an order granting summary judgment.

       See Cornett v. Manheim Svcs. Corp., 151 Ga. App. 336, 338 (259 SE2d 723) (1979).