text:
    A96A2464.
    SPIRES v. TARLETON.
    (483 SE2d 337)
   Johnson, Judge.

Phillip Tarleton married Salina Conkle, the mother of Jessica Lee Conkle. Tarleton then filed this petition to terminate the parental rights of Jessica’s biological father, Robert Spires, and to adopt Jessica. The trial court granted the petition. Spires appeals, and we reverse.

1. Spires correctly claims the trial court erred in denying his motion to dismiss, made on the ground that Tarleton’s petition failed to meet the requirements of OCGA § 19-8-13 (a) (4). This statute sets out a list of documents, each of which “shall be provided or attached or its absence explained when [a] petition is filed” under OCGA § 19-8-6 (a), which governs stepparent adoptions. Tarleton failed to attach or explain the absence of the affidavit of the legal mother, required by OCGA § 19-8-13 (a) (4) (C); the allegation of compliance with OCGA § 19-8-12, required by OCGA § 19-8-13 (a) (4) (E); the birth certificate of the child and marriage certificate of the custodial parent and new spouse, required by OCGA § 19-8-13 (a) (4) (F); and the information sheet required by OCGA § 19-8-13 (a) (4) (G), which is a "completed form containing background information regarding the child to be adopted.” Because “[a]doption statutes should be strictly construed and meticulously followed,” Nelson v. Taylor, 244 Ga. 657, 659-660 (2) (261 SE2d 579) (1979), the failure to attach or explain the absence of these documents requires reversal. See id.

Cases upholding adoptions in spite of technical flaws in the supporting documents are distinguishable. In Families First v. Gooden, 211 Ga. App. 272 (439 SE2d 34) (1993), the biological mother omitted some facts and falsified others in her affidavit. We held this did not give her a right to challenge the adoption later, because the purpose of the information in question was to allow notice to the putative biological father, who in fact received notice in spite of the affidavit’s defects. Moreover, it would have been inequitable to allow the biological mother to profit by her own intentional misconduct. See id. at 274-275 (2).

Similarly, in Lee v. Stringer, 212 Ga. App. 401 (441 SE2d 861) (1994), the biological mother signed a surrender form that should have, but did not, contain language surrendering the child to the Department of Human Resources if the intended adopting parents did not file their adoption petition within 60 days. We held this defect immaterial because the adopting parents filed a proper petition within 60 days. Id. at 401-402 (1). The instant case, by contrast, deals with the omission of entire documents, and Tarleton has not demonstrated that they were immaterial.

Chandler v. Cochran, 247 Ga. 184, 186 (2) (275 SE2d 23) (1981) is also distinguishable. Though Chandler affirmed an adoption in spite of the complete absence of a statutorily required report, the statute there in issue vested the trial judge with discretion to take alternative investigatory steps if the report were unavailable. The judge in Chandler took those steps. Id. at 185-186. Moreover, the Chandler report was to have come from a neutral source, the Department of Human Resources. In the instant case, however, OCGA § 19-8-13 (a) (4) provides that the documents in issue are to come from the petitioner; places squarely on the petitioner the burden of explaining the absence of any missing document; and does not set out any other ground for proceeding without the documents. Tarleton did not attach the documents or explain their absence. The judgment in his favor therefore cannot be sustained. See generally Nelson v. Taylor, supra.

2. Though we need not reach the issue to decide this appeal, we note for purposes of retrial our doubt that the evidence in this case reaches the “clear and convincing” standard required to support a termination of parental rights. See Blackburn v. Blackburn, 249 Ga. 689, 694 (2) (292 SE2d 821) (1982). Certainly Tarleton has shown no abandonment under OCGA § 19-8-10 (a), because there is no evidence whatsoever of “an actual desertion, accompanied by an intention to sever entirely, as far as possible to do so, the parental obligations . . . and forego all parental duties and claims.” (Citation, punctuation and emphasis omitted.) Griffith v. Brooks, 193 Ga. App. 762, 766 (1) (389 SE2d 246) (1989). Moreover, the evidence suggests Conkle may have deliberately frustrated Spires’ attempts to communicate with and provide support for Jessica. If she did so, then it is unlikely Tarleton could show that Spires’ conduct met one of the two alternative grounds for terminating his rights under OCGA § 19-8-10 (b): Failure for at least one year, without justifiable cause, to communicate meaningfully with or provide support for the child. See generally Crumb v. Gordon, 157 Ga. App. 839, 841-842 (2) (278 SE2d 725) (1981).

Decided March 4, 1997.

Adams, Barfield, Dunaway & Hankinson, Nancy C. Barfield, for appellant.

C. Arthur Moss, Jr., for appellee.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A2530.
    WATERS v. WALTON.
    (483 SE2d 133)
   Smith, Judge.

In April 1992 a criminal arrest warrant was issued and executed against Charles Waters for the offense of trafficking in cocaine. On May 18, 1992, the warrant was dismissed by the Chief Magistrate of Columbia County at the request of the Sheriff’s Department. In February 1996, Waters filed this action against Berry Walton as administrator of the estate of Bryant Walton for malicious prosecution, false arrest, and false imprisonment. Waters alleged that Bryant Walton caused his arrest by planting the cocaine in his automobile and supplying false information to law enforcement authorities. The trial court granted summary judgment to Walton on the ground that Waters’s claims were barred by the two-year statute of limitation applicable to injuries to the person. OCGA § 9-3-33. This appeal ensued. We agree with the trial court’s conclusion and affirm.

A malicious prosecution action must be brought within two years after termination of the underlying prosecution in plaintiff’s favor. Daniel v. Ga. R. Bank &c. Co., 255 Ga. 29, 31 (334 SE2d 659) (1985). Dismissal of an arrest warrant by a magistrate, either with or without the consent of the prosecutor, “constitute^] termination of the prosecution favorable to the plaintiff.” Ayala v. Sherrer, 234 Ga. 112, 117 (214 SE2d 548) (1975). Here, the prosecution against Waters terminated in his favor on May 18, 1992, when the magistrate dismissed the arrest warrant. The State did not reinstitute further proceedings against Waters. He filed this action in February 1996, outside the two-year limitation period, and this action for malicious prosecution is thus barred.

Waters urges us to adopt a new rule, however, that even when a criminal action has been favorably terminated by dismissal, an action for malicious prosecution may be brought within two years of the expiration of the statute of limitation on the underlying criminal charge. Under this argument, Waters would have been entitled to bring his action within six years of the April 1992 incident — two years after the expiration of the four-year statute of limitation on the criminal charge.

It is true, as argued by Waters, that a magistrate’s dismissal does not bar a further criminal action. Ayala, supra at 115, n. 1. See also Vadner v. Dickerson, 212 Ga. App. 255, 257, n. 3 (441 SE2d 527) (1994) (action for malicious prosecution brought within two years of dismissal of the warrant subject to defeat by further action on the criminal charge). Because a criminal action may be reinstituted despite dismissal, Waters maintains that the prosecution was not “conclusively” terminated until expiration of the statute of limitation and that a person wrongfully arrested cannot safely bring a malicious prosecution action until the criminal charge against him is barred by the statute of limitation. He contends that this result “is particularly true under the factual circumstances of this case [since he] was the victim of an informant of the FBI, whose identity is unavailable until that agency chooses to release it.”

These arguments are unconvincing. We first note that Waters produced no evidence that Walton’s identity was unavailable until after the expiration of the statute of limitation. Second, although a prosecution may be reinstituted after dismissal of a warrant, the law is well settled that a magistrate’s dismissal is prima facie evidence that the prosecution terminated favorably to the accused, subject to the opposing party’s burden to show that the prosecution did not in fact so terminate. See generally Vadner, supra at 256.

On motion for summary judgment, Walton submitted evidence that on May 15, 1992, approximately a month after Waters’s arrest, Captain Adams of the Columbia County Sheriff’s Department sent a letter to the Columbia County Chief Magistrate. The letter recited that the informant who provided the department with information leading to Waters’s arrest “could possibly have planted the drugs in Mr. Waters’ vehicle” and that “an interview of the informant had verified this fact.” Based on this information, Adams requested that the warrant be dismissed, and it was dismissed three days later. Although the letter recited that an investigation continued and that “charges against the informant and any other parties involved will be forthcoming,” Adams testified via affidavit that this investigation was “an investigation of the alleged informant and others. It was not an investigation of Charles Wendall Waters.” In opposition to the motion, Waters presented no evidence that the investigation against him continued or that he was again charged with the offense of trafficking in cocaine. Although a prosecution could have been reinstituted against Waters, none was forthcoming, and Waters even concedes in his appellate brief that no charges were made against him before expiration of the applicable statute of limitation. Waters failed to meet his burden of showing that the prosecution did not in fact terminate against him by the reinstitution of further investigation or prosecution. The prosecution against Waters therefore terminated in May 1992, when the magistrate dismissed the criminal warrant, and Waters was required to file this action within two years of that date.

Essentially, Waters argues that the dismissal somehow did not terminate the action in his favor and that the action was conclusively terminated in April 1996 only after expiration of the statute of limitation. But if we were persuaded by this argument, Waters’s claim was premature. He filed it in February 1996, before the limitation period expired. Under Waters’s theory, he filed his complaint before the action terminated favorably to him, and his claim for malicious prosecution was subject to dismissal. See Vadner, supra, 212 Ga. App. at 257, n. 3. The trial court did not err in granting Walton’s motion for summary judgment.

Judgment affirmed.

Andrews, C. J., and Pope, P. J, concur.

Decided March 4, 1997.

Groover & Childs, Denmark Groover, Jr., Christopher G. Nicholson, for appellant.

William C. Calhoun, Thomas W. Tinley III, for appellee.

       Although Waters enumerated as error the grant of summary judgment with regard to the entire action, he cites no authority and makes no argument in his brief concerning the claims of false arrest and false imprisonment. Because enumerations not supported in the brief are deemed abandoned, Court of Appeals Rule 27 (c) (2), we consider here only the grant of summary judgment with regard to the malicious prosecution claim.

       We recognize that the holding in Ayala “is subject to the defendant’s right to show that in fact the prosecution has not ended.” Ayala at 117. Walton, however, does not make this argument but instead correctly contends that the prosecution did in fact terminate in Waters’s favor.


author: Eldridge, Judge.

text:
    A97A0490.
    MOORE v. BANK OF FITZGERALD.
    (483 SE2d 135)
   Eldridge, Judge.

Appellant Sharon S. Moore appeals the trial court’s grant of summary judgment to appellee, the Bank of Fitzgerald. We affirm the trial court’s grant of summary judgment.

This case involves 935 acres of farm land located in Dodge and Coffee Counties which were owned and operated by appellant’s husband, Pettice Lee Moore (“Lee Moore”), and mother-in-law, Edna Moore. In addition to the farming operation, appellant raised cattle on the land through her corporation, TASL Farms, Inc. (“TASL”). In an effort to consolidate their land debt, Lee and Edna Moore secured a $700,000 secured loan on the property through appellee on December 20, 1989, giving appellee a Deed to Secure Debt on the entire 935 acres.

When Lee and Edna Moore defaulted on the loan, appellee initiated foreclosure proceedings. Prior to the June 4, 1991 sale of the property, appellee agreed to loan appellant funds, in an amount roughly the equivalent to the outstanding indebtedness plus one dollar, in order to buy the property at foreclosure if she was the successful bidder. The terms of the oral agreement between appellant and appellee were reduced to writing in a letter dated May 30, 1991. The letter specifically noted that “[t]he terms of this letter will supersede any other verbal agreements made between the parties.” Appellant was the successful bidder at the foreclosure sale and signed appellee’s secured mortgage note in the amount of $737,635 on June 25, 1991.

Eighteen months later, on December 1, 1992, appellant filed a Chapter 12 bankruptcy petition in the United States Bankruptcy Court, Southern District of Georgia. As part of this proceeding, appellant/debtor was required to file with the court a list of all creditors and any property in which the secured creditors had an interest; appellant also was required to provide a current valuation of the security property. Further, if this valuation was challenged by a secured creditor, appellant/debtor and the creditor were “required to provide all appraisals or other available information concerning valuation.”

On January 12, 1993, appellee filed a proof of claim setting forth the amount of indebtedness owed by appellant to appellee in the amount of $880,026.39. Although appellant originally filed an objection to the amount of indebtedness listed in the proof of claim, such objection was subsequently withdrawn by appellant. At that time, appellant did not assert any existing or potential claims against appellee in her bankruptcy petition, even though she was specifically required to disclose all of her assets and liabilities. 11 USC § 521.

After appellant filed a valuation of 851 acres of the security property at $450,000, appellee contested the valuation and asserted that the land should be valued at $772,000 instead; appellee requested a hearing on the valuation issue, which was held on February 2, 1993. Following the hearing, the bankruptcy court ruled that, for the purposes of a Plan of Arrangement, the value of the property with improvements thereon was $557,450.

After establishing the amount of indebtedness and the valuation of security property, appellant filed a Plan of Arrangement with the bankruptcy court pursuant to 11 USC § 506 (b) and the Federal Rule of Bankruptcy Procedure 3012. Appellee objected to several provisions of the Plan of Arrangement; appellee also filed a motion to dismiss or convert the case and a motion for relief from the automatic stay. After negotiations between the parties concerning the specifics of the plan, a Recast Plan of Arrangement was drafted and filed; appellee’s objection and motions were withdrawn. The bankruptcy court confirmed appellant’s Recast Plan of Arrangement on July 29, 1993.

On April 25, 1994, appellee moved for relief from the automatic stay so that the bank could foreclose on the property, asserting that the appellant/debtor failed to pay taxes on the secured property and failed to maintain insurance on the property; that appellee was prejudiced by the delay caused by the stay; that appellee’s interests were not adequately protected; and that appellant lacked any equity in the property and was unable to successfully reorganize her debts. A hearing was held on the motion on June 21, 1994, at which time the court granted appellee relief from the automatic stay in order to allow appellee to foreclose its security interest in appellant’s property.

In June 1994, after determining that the appellant was in default, appellee began foreclosure proceedings; the sale was scheduled for the first Tuesday in August 1994. On June 6, 1994, appellant amended her answer to Schedule B, question 20 of her bankruptcy petition, which required a listing of “other contingent and unliquidated claims of every nature, counterclaims of the Debtor and rights to set off claims,” to include a claim against appellee for breach of fiduciary duty and breach of contract. Appellant also filed suit against appellee on June 10, 1994, for set-off or recoupment, damages, punitive damages and expenses of litigation. However, the complaint was subsequently dismissed when, on September 9, 1994, appellant dismissed her Chapter 12 bankruptcy petition without prejudice pursuant to 11 USC § 1208 (b).

In the meantime, on August 1, 1994, appellant filed a complaint against appellee in the Superior Court of Ben Hill County asserting, inter alia, breach of fiduciary duty, breach of contract, and wrongful foreclosure. Appellant also requested a temporary restraining order against the impending foreclosure, which was denied by the court.

Appellee moved for summary judgment on February 27, 1996, asserting that appellant’s complaint failed to assert a cause of action for which relief can be granted. The trial court granted summary judgment to appellee on August 23, 1996, and an appeal was timely filed.

1. Res Judicata and Judicial Estoppel. Appellant asserts in her first enumeration of error that the trial court erred in finding that her claims were barred under the theory of res judicata. This Court agrees with appellant that, under the specific facts of this case, res judicata does not apply here.

In the case sub judice, after appellant’s Chapter 12 bankruptcy petition was filed and a Plan of Arrangement was confirmed by the court, appellant dismissed her suit without prejudice. Upon such dismissal, all parties were returned to the status quo ante and the property of the estate was revested in appellant, who again became liable to the appellee for the entire debt, while appellee was freed from the automatic stay to pursue its right to foreclosure under its Deed to Secure Debt. See 11 USC § 349 (b) (3); see also In re Nash, 765 F2d 1410 (9th Cir. 1985) (dismissal of a Chapter 13 bankruptcy case effectively vacates a confirmed plan). While the appellee may have been prejudiced by the delay in pursuing foreclosure which resulted from the automatic stay, this slight prejudice is insufficient to bar appellant’s claim under the principle of res judicata.

Further, appellee’s assertion that judicial estoppel should bar the claim fails as well, even though the appellant failed to disclose a potential asset, the claim against appellee, in her sworn bankruptcy petition. Compare Johnson v. Trust Co. Bank, 223 Ga. App. 650 (478 SE2d 629) (1996). Cases holding that judicial estoppel precludes preexisting, undisclosed claims are distinguishable on their facts and are not controlling in this case. See Hyre v. Denise, 214 Ga. App. 552 (449 SE2d 120) (1994) (plaintiff/appellant’s claim was barred by judicial estoppel after her Chapter 13 bankruptcy case was converted to a Chapter 7 petition); Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454 (442 SE2d 265) (1994).

We hold that, under the specific facts of this case, appellant’s claim was not barred under the principle of res judicata or judicial estoppel.

2. In her second and third enumerations of error, appellant asserts that the trial court erred in granting summary judgment to appellee on the basis that appellant’s complaint is not supported by genuine issues of material fact. Specifically, appellant asserts that the Statute of Frauds does not apply to the contracts underlying her complaint. We disagree as to both assertions.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff[/appellant’s] claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(a) Breach of Fiduciary Duty. Appellant’s complaint asserts that appellee assumed a fiduciary position with respect to appellant’s cattle business by undertaking the “management, direction, and control” over the operation. However, case law and evidence presented negates a finding of a fiduciary relationship between the parties. Such evidence includes a letter, signed by appellee, which affirmatively established the terms of any asserted oral contract between the two parties regarding future operating loans and other management issues. While this letter specifically noted that appellant would be required to meet monthly with a bank official to “monitor her farming operation and progress,” there is no indication that the relationship between lender (appellee) and borrower (appellant) was so intertwined as to create a fiduciary relationship.

Further, appellee cites to C & S Nat. Bank &c. v. Arnold, 240 Ga. 200, 201 (240 SE2d 3) (1977) which held that “[t]here is no confidential relationship between a bank and its customers merely because the customer had advised with, relied upon, and trusted the bankers in the past.” See also First American Bank v. Bishop, 239 Ga. 809 (239 SE2d 19) (1977); Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 662 (434 SE2d 716) (1993). This Court, in Pardue v. Bankers First Fed. Sav. &c. Assn., 175 Ga. App. 814 (334 SE2d 926) (1985), explained why such a relationship cannot be found, absent special circumstances not present in the case sub judice, by stating that there is “particularly no confidential relationship between lender and borrower or mortgagee and mortgagor for they are creditor and debtor with clearly opposite interests. . . . [E]ven if the bank had undertaken to advise appellant on [her cattle operation] and had [misled] appellant, [appellant] would not be entitled to rely on any such representations but would be ‘under a duty to prosecute [her] own inquiries’ . . . [tit.],” as appropriate. (Emphasis in original.) Id. at 815.

Further, “[t]he mere fact that one reposes trust and confidence in another does not create a confidential relationship. ‘In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is no confidential relationship by this alone.’ Dover v. Burns, 186 Ga. 19, 26 (196 SE 785) [(1938)].” Lewis v. Alderman, 117 Ga. App. 855 (162 SE2d 440) (1968).

We hold that, as a matter of law, no fiduciary relationship existed between appellee and appellant.

(b) Breach of Contract. Appellant also asserts that appellee breached its agreements with appellant by acting to prevent the appellant from receiving her benefits under the agreements and by interfering with her performance of the agreements. The agreements at issue appear to be the loan on June 25, 1991 for approximately $737,635, evidenced by a written and executed loan document, and a previous oral agreement regarding the terms of the loan and future action by the parties, which was reduced to writing in a letter from appellee to appellant’s husband on May 30, 1991. The letter reflecting the oral agreement provides for, inter alia, the bank to loan “reasonable funds for her cattle operation, provided that [appellant] can furnish assurances that cattle feed can be provided and that she can furnish data establishing the feasibility of pay back of such operating loan or loans, and provided that such operating monies and loans will be consistent with sound banking practices.” Further, the letter states that its terms “will supersede any other verbal agreements made between the parties.”

Appellant’s assertion that appellee’s refusal to renew her mortgage loan was a breach of contract is not supported by the document itself, which contains no such agreement to renew. Further, appellant admits that the parties had only “implicitly” agreed to such automatic renewal. Such parol evidence is inadmissible in a breach of contract action. See Sawyer v. Roberts, 208 Ga. App. 870 (432 SE2d 610) (1993).

Appellant further asserts that appellee’s refusal to allow appellant to sell part of the security property to reduce her indebtedness was a breach of contract. However, the loan document and the letter memorializing the agreements between the parties do not evidence any agreement that appellant would be allowed to divest herself of security property without appellee’s permission. Again, appellant’s assertions cannot be proved by parol evidence.

As to the alleged oral agreements between the parties concerning future operating loans, Georgia’s Statute of Frauds, OCGA § 13-5-30, states that, among the obligations that “must be in writing and signed by the party to be charged therewith” is “[a]ny commitment to lend money.” OCGA § 13-5-30 (7). Further, enforcement of an alleged oral agreement to make a future loan in an indefinite amount is barred by the Statute of Frauds. Bridges v. Reliance Trust Co., 205 Ga. App. 400, 401 (422 SE2d 277) (1992). Therefore, appellant’s breach of contract claim fails under the Statute of Frauds.

However, even if the letter from appellee to appellant is construed as a written commitment by appellee to make future operating loans, “ ‘[u]nless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future [i.e., a loan] is of no effect. (Cits.)’ Malone Const. Co. v. Westbrook, 127 Ga. App. 709 (194 SE2d 619) (1972).” Hartrampf v. C & S Realty Investors, 157 Ga. App. 879, 881 (278 SE2d 750) (1981).

The trial court was correct in granting summary judgment on the issue of breach of contract.

(c) Wrongful Foreclosure. Appellant’s brief to this Court cited neither legal authority nor the record of this case to support this cause of action. Further, appellant’s complaint regarding this cause of action was entirely dependent upon a finding by the court that appellee had breached its contract with appellant and breached its fiduciary duty, or both. Since we have found, supra, that such claims are not supported by the record or are otherwise barred, appellant’s assertion of wrongful foreclosure fails also.

(d) Appellant further attempts to assert, for the first time on appeal, alternative theories of recovery which were not considered by the trial court, including promissory estoppel and causes of action based on fraud and a generic “intentional tort” theory. Therefore, lacking such consideration, there is nothing for this Court to review regarding these theories. See Collins v. Byrd, 204 Ga. App. 893, 895 (420 SE2d 785) (1992).

Decided March 4,1997.

Anthony J. Solari III, for appellant.

Mills & Chasteen, Ben B. Mills, Jr., Robert W. Chasteen, Jr., for appellee.

Appellant failed to present evidence to create a genuine issue of fact for every element of each theory of recovery. A trial court’s decision to grant summary judgment will not be disturbed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (403 SE2d 47) (1991); see also Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989); Simmons v. Boros, 255 Ga. 524, 525 (341 SE2d 2) (1986). Therefore, we affirm summary judgment in favor of appellee.

3. Because this Court has found that the trial court’s grant of summary judgment to appellee was appropriate, we reject appellant’s final assertion that the court erred in not granting summary judgment to appellant.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       This amount includes additional loans by appellee to appellant for the purchase of cattle and other operating expenses.

       In addition, appellant’s assertion of promissory estoppel was not supported in her appellate brief by “specific reference to the record or transcript,” as required by Court of Appeals Rule 27 (c) (3) (i).

       Although appellant made references to alleged fraudulent conduct or misrepresentation by appellee in her original and amended complaints, she failed to plead fraud with particularity, as required by OCGA § 9-11-9. Further, in enumerating this alleged error to this Court, appellant failed to cite to specific facts in the record that support her allegation, instead insisting simply that “there is more than sufficient evidence in the record” for a factfinder to find that appellee’s actions were fraudulent. Such reference is insufficient and will not be considered. See Court of Appeals Rule 27 (c) (3) (i).


author: Smith, Judge. Pope, Presiding Judge,

text:
    A96A1753.
    FORD MOTOR COMPANY v. TIPPINS et al.
    (483 SE2d 121)
   Smith, Judge.

Phillip Morris Tippins and his wife were killed in a collision between their car and a van. Tippins’s sons, as joint administrators of his estate, brought this product liability action against Ford Motor Company, alleging that the failure of Tippins’s airbag to deploy contributed to his death. At trial, the jury returned a verdict in favor of the plaintiffs in the amount of $190,000. Judgment was entered in the amount of $380,000 by the trial court. Ford appeals, asserting that the trial court should have excluded certain testimony, should have directed a verdict in its favor, and should not have entered a judgment for twice the amount of the jury’s verdict. We agree with Ford’s last contention and reverse.

Construed in favor of the verdict, the evidence showed that, as Tippins was driving his Ford Taurus lawfully on a state highway, a full-sized Ford Club Wagon van driven by a man under the influence of drugs crossed the centerline and hit his car head-on. The witnesses agreed that the combined collision speed of the vehicles was between 60 and 70 mph.

There was no dispute that the collision was “very severe” and “a very bad wreck.” Not only did the vehicles meet at high speed and head-on, the larger and heavier van also rode up over the front end of Tippins’s car, doing substantial damage to the passenger compartment. The testimony of the witnesses and the photographs taken at the scene establish that there was catastrophic structural damage to Tippins’s vehicle. Emergency medical personnel cut away portions of the car with the “jaws of life,” folded back the roof, and pulled the remains of the dashboard away from the front seat with a winch attached to a four-wheel-drive truck. There was no dispute that the ■ steering column was sheared off at the dashboard by the force of the collision, completely severing the steering wheel containing the driver’s side airbag. The steering wheel was found “up under” Tip-pins’s upper body. Plaintiffs elicited testimony that the front end of the van actually entered the passenger compartment, striking Tip-pins in the head. Plaintiffs contended, however, that a properly functioning airbag would have prevented the van’s bumper from striking Tippins and killing him.

1. In its first enumeration of error, Ford complains that the trial court erred in allowing a witness for the plaintiffs, James King, to testify that the decedent could have survived the accident if the driver’s side airbag had deployed. Ford contends that King was not qualified to testify as an expert in the area of biomechanics and collision survivability and that he had an insufficient factual foundation upon which to base his opinion.

It is apparent from the record that King, a retired car dealer, auto mechanic, and body shop owner, had no training or experience in any of the medical or technical aspects of biomechanics and collision survivability. It is also apparent from the testimony and evidence that the condition of the vehicle was materially altered before King examined and photographed it, both by emergency medical personnel in their rescue efforts and by others in transporting or storing the car. Evidence was also introduced suggesting that King altered the condition of the car before the photographs were taken. But because Ford’s counsel failed to preserve Ford’s objections for appellate review, we do not reach either of these issues.

Ford’s counsel initially objected to King’s lack of qualification as well as to the lack of foundation for his opinion. Plaintiffs’ counsel stated, “I expect to lay that foundation,” to which the trial court responded, “Okay.” Plaintiffs’ counsel asked some additional questions, then asked again if Tippins would have survived if the airbag had deployed; King responded simply, “Oh yeah,” and “No doubt.” Ford’s counsel did not object again, although King was cross-examined at length on the basis for his testimony.

Because of this failure to renew its objection or object to any portion of the witness’s testimony, Ford has failed to preserve this enumeration of error for appeal. Morris v. State, 212 Ga. App. 42, 44 (2) (441 SE2d 273) (1994). Ford also failed to move to strike King’s testimony after cross-examination. That method of preserving an issue for appellate review, however, has been disapproved by the Supreme Court of Georgia except in strictly limited circumstances. Sharpe v. Dept. ofTransp., 267 Ga. 267, 268 (476 SE2d 722) (1996).

“[TJhis court has often noted that even an otherwise valid objection is waived unless timely made at trial. [Cit.] Objections presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court. [Cit.]” Butler v. State, 172 Ga. App. 405, 406-407 (1) (323 SE2d 628) (1984). Under these circumstances, we cannot address the issue of the qualification of plaintiffs’ witness James King or the foundation for his testimony.

2. In a related enumeration of error, Ford contends the trial court erred in failing to direct a verdict in its favor because of the absence of evidence that the collision was survivable. Despite plaintiffs’ contentions to the contrary, the testimony of James King is the only evidence that the collision was survivable. Since Ford did not object, however, King’s testimony constitutes some evidence of survivability and fulfills the “any evidence” rule applicable to motions for j.n.o.v. and directed verdict. Outdoor Systems v. Woodson, 221 Ga. App. 901, 902 (1) (473 SE2d 204) (1996). Ford’s argument that this Court has the authority to reverse a verdict as against the weight of the evidence is without merit: such a reversal is a discretionary decision resting solely with the trial court. OCGA § 5-5-21; Antique Center of Roswell v. City of Roswell, 196 Ga. App. 894 (3) (397 SE2d 146) (1990); McBowman v. Merry, 104 Ga. App. 454, 455-456 (1) (122 SE2d 136) (1961).

3. In its third enumeration of error, Ford argues that plaintiffs failed to show that its product was defective. Once again, King’s testimony is the only evidence concerning a defect in the airbag system. King was never offered or qualified as an expert witness with respect to airbag design, and he offered little if any foundation for his opinion that the airbag electronics should have been located in the rear of the vehicle to avoid damage. He simply stated that, “you’ve got some bad engineers,” “the whole [airbag] system is wrong,” and “you’re 20 years behind time.” He also testified that he did not agree with the government standards or statistics on airbags and added that if Ford’s engineers had come to his house he could have told them how to build the airbag system. Once again, Ford failed to object either to King’s lack of qualification as an expert or to the lack of factual foundation for his opinions, and under the “any evidence” rule, this unobjected-to testimony suffices to present the case to a jury.

4. Ford also contends that the trial court should have granted its motion for a directed verdict because plaintiffs presented no evidence that the “enhanced injury” attributable to Ford’s product caused Tippins’s death. There was no direct evidence as to any injuries to Tippins other than the head injury, because the family refused an autopsy. The EMT who attended Tippins on the scene recorded “massive head and chest trauma” and “probable” multiple extremity fractures, but acknowledged that he could not state positively the extent of Tippins’s other injuries. The embalmer testified that the decedent “was, like his wife, messed up so bad, I don’t know if I can say one thing that caused his death or not.” Witnesses engaged in much speculation regarding the presence or absence of signs of other injuries and their inferences from their observations, but no direct evidence of other injuries was presented. Plaintiffs contended that the absence of testimony regarding the presence of other injuries showed that the head injury was the sole cause of Tippins’s death, that the deployment of the driver’s side airbag would have prevented the head injury, and that Tippins therefore would have survived.

Ford complains that plaintiffs never proved the extent of “enhanced injury” to Tippins caused by the failure of the airbag, citing Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616 (423 SE2d 659) (1992). Ford’s reading of Polston, however, is not a correct statement of the law. Polston holds that once the plaintiff has proved the existence of an injury-enhancing defect, the burden falls on the defendant to prove the degree of injury attributable to other causes. Id. at 618-619. The burden fell upon Ford, not plaintiffs, to show the extent of injury not caused by the failure of the airbag.

This, as the dissent in Polston observes, requires the defendant to prove an essential element of the plaintiff’s case. Id. at 622 (Hunt, J., dissenting). We note, too, that in wrongful death actions such proof is unavailable to the defendant. In the case of a non-fatal injury, as in Polston, the defendant can require the plaintiff to submit to an independent medical examination, OCGA § 9-11-26 (a), but no analogous discovery is possible in a death case. Because Tippins’s family forbade an autopsy, it was impossible for Ford to obtain any medical evidence regarding the degree of injury attributable to other causes. But because we are bound by the clear rule established by the Supreme Court, we hold that the trial court did not err in denying Ford’s motion for directed verdict on this ground.

5. In its two remaining enumerations of error, Ford complains that the trial court acted improperly when it entered judgment for double the amount of the jury’s verdict. We agree.

Before retiring to deliberate, the jury received a verdict form that was not objected to by any party, although the record does not show by whom it was drafted or submitted. The jury returned a verdict in the amount of $380,000 in favor of Tippins’s estate and $0 in favor of the plaintiffs, individually. After inspecting the verdict, the court, plaintiffs’ counsel, and defendant’s counsel agreed that the verdict was improper. Plaintiffs’ counsel suggested that the jury could correct the verdict in the jury box, and the trial court questioned the jurors, asking if they meant to return a verdict for the full value of the decedent’s life. After two jurors responded that they did, the trial court chose not to correct the verdict with the jury in the box. Instead, the court told the jurors to retire to the jury room with another verdict form to prepare a verdict “whatever your intention was.” This second verdict form submitted to the jury was identical to the first and was approved by both counsel.

Ford’s counsel objected to the colloquy with the jurors, contending that the trial court had asked the jurors about their verdict and thus had interfered in the jury process. Plaintiffs’ counsel responded, “I think the Court acted properly,” and suggested that the jury be polled as to their verdict on the second verdict form while they were still in the box, stating, “I don’t think there would be then any question about it.” Although plaintiffs’ counsel did not renew any objection after the jury retired, he did make the perhaps joking but ultimately prophetic comment, “They might change their minds before they get back.”

The jury returned with a verdict in the amount of $190,000 in favor of the plaintiffs, individually, and for $0 in favor of the estate. Asked if he had any objection, plaintiffs’ counsel requested that the jurors be polled, and they affirmed the verdict. After the polling, plaintiffs’ counsel responded to a question from the trial court, “Anything else from the plaintiff?” with “No, your honor.” The jury was then discharged.

The trial court did not enter judgment on the jury verdict until October 16, approximately 18 days after the verdict and discharge of the jury. Before entering judgment, the trial court indicated to the parties its intention to double the amount of the jury’s verdict sua sponte, apparently concluding that the jury intended to award $190,000 to each plaintiff rather than $190,000 in total. Judgment was entered in the amount of $380,000 over Ford’s'mbjection. Ford also objected to this action in its motion for new trial and j.n.o.v., and the trial court denied the motion on this basis, stating that it returned the jury to the jury room “to correct the form of the verdict, not the substance thereof.”

(a) We find no merit in Ford’s assertion that it was entitled to a mistrial on the basis of the trial court’s comments to the jury regarding the first, rejected jury verdict. While the trial court cannot comment on or express an opinion regarding the evidence, OCGA § 9-10-7, and cannot express approval or disapproval of a verdict, OCGA § 9-10-8, the trial court’s remarks here did not rise to that level. The text of the discussion does not show that the trial court commented on the evidence or expressed an opinion regarding the verdict, other than agreeing with counsel that it was “backwards” or inconsistent with the evidence and void. “Remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citations and punctuation omitted.) Corley v. State, 192 Ga. App. 35, 37 (3) (383 SE2d 586) (1989); see also Rameo Roofing &c. Co. v. Kaminsky, 156 Ga. App. 708, 709 (2) (275 SE2d 764) (1980). In determining whether the jury can clarify a verdict in the jury box, as permitted by Súber v. Fountain, 151 Ga. App. 283, 291 (3) (259 SE2d 685) (1979), see Division (5) (b), the trial court must necessarily question the jurors.

(b) The law governing the correction of improper verdicts is clear. As to the first verdict, the parties and the court acknowledged on the record that it was not supported by the evidence and was improper. “Where an inconsistent and void verdict is returned by the jury, it is proper for the trial judge to refuse to receive the verdict, and to require them to return for further deliberations, under proper instructions. (Cits.) [Cit.] See OCGA §§ 9-12-4; 9-12-8.” (Punctuation omitted.) Kemp v. Bell-View, Inc., 179 Ga. App. 577, 581 (346 SE2d 923) (1986). See also Kendall v. Curtis, 194 Ga. App. 37, 38 (1) (389 SE2d 550) (1989) (proper to require jury to redeliberate, incorrect to “mold the verdict originally returned by the jury.”).

Plaintiffs’ counsel failed to point out any inconsistency or ambiguity in the second verdict, even after the jury was polled. Had plaintiffs raised this objection at the proper time, the trial court could have once again sent the jury back to correct their verdict, or, alternatively, could have inquired of the jury before their dispersal, determined their true intent, and corrected the verdict accordingly. Súber v. Fountain, supra at 291 (3).

In First Union Nat. Bank v. Boykin, 216 Ga. App. 732, 735 (1) (455 SE2d 406) (1995), this Court noted the rule that “since the jury dispersed before clarifying this substantive issue, the trial court lost authority to correct or otherwise amend the seemingly inconsistent verdict. [Cit.]” A new trial was not required, however, because the appellant had waived any challenge to the verdict by its failure to object. Id. “[U]pon hearing an improper verdict rendered, a litigant should not sit silently by, hoping to gain a retrial by failing to object.” (Citations and punctuation omitted.) LaBanz v. Bank South &c., 198 Ga. App. 79, 82 (1) (400 SE2d 357) (1990).

“[Ojnce the jury has dispersed the trial judge has no power either to add to or to take from their findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. . . . Further, a verdict may not be amended in matter of substance after it has been received and recorded and the jury has dispersed. OCGA § 9-12-7.” (Citations and punctuation omitted.) Force v. McGeachy, 186 Ga. App. 781, 784 (368 SE2d 777) (1988). It is clear that the actual dollar amount of the jury’s verdict, whatever its basis, is not a matter of mere “form,” as the trial court stated, but the very substance of the verdict. Id.; French Quarter v. Peterson Young Self & Asselin, 220 Ga. App. 852, 853 (1) (471 SE2d 9) (1996); Crawford v. Presbyterian Home, 216 Ga. App. 54, 56 (4) (453 SE2d 480) (1995). While it is certainly possible that the jury intended each of the plaintiffs to recover $190,000, it is also possible, as plaintiffs’ counsel observed, that the jurors simply “changed their minds” upon further deliberation. Before the jury was sent back, there was explicit discussion of the jury’s intent to return a verdict “for the full value of the life of the decedent.” Any attempt to divine the jurors’ thought processes in awarding the full value of the decedent’s life would be mere speculation and guesswork, now that the jury has dispersed.

Decided February 18,1997

Reconsideration denied March 5,1997

Long, Weinberg, Ansley & Wheeler, Earl W. Gunn, Charles K. Reed, for appellant.

The trial court cannot rely on the rejected verdict to obtain a dollar amount with which to alter an apparently legal and consistent second verdict. See Harris v. Tatum, 216 Ga. App. 607, 611 (3) (455 SE2d 124) (1995). The trial court agreed with both parties that the first verdict was improper and returned the jury for further deliberations; that verdict therefore became a nullity with the full consent of the parties. The trial court erred in sua sponte doubling the jury’s verdict, and we must remand this case with the direction that the trial court enter judgment on the jury’s verdict in the amount of $190,000.

Judgment affirmed in part, reversed in part, and remanded with direction.

Andrews, C. J, concurs. Pope, P. J., concurs specially.

Pope, Presiding Judge,

concurring specially.

I fully concur in Divisions 1 through 3 and 5, and agree with the result in Division 4.1 write separately only to note that I do not agree with the majority’s criticism of Polston v. Boomershine Pontiac-GMC Truck, 262 Ga. 616 (423 SE2d 659) (1992).

Leon A. Wilson II, for appellees.

       No claim was made in this action on behalf of Tippins’s wife.


author: Blackburn, Judge.

text:
    A96A1993.
    DANIEL v. LIPSCOMB.
    (483 SE2d 325)
   Blackburn, Judge.

Monica I. Daniel appeals the probate court’s denial of her petition to set aside its order admitting her late mother’s will to probate. The will disinherited Daniel, and was admitted to probate after she executed an acknowledgment and assent to probate which had the legal effect of waiving all her objections to the will. In this discretionIary appeal, Daniel seeks to revoke the probate of the will based upon fraud and mutual mistake of fact in her execution of the acknowledgment and assent.

The facts show that Daniel is the sole heir at law of Bojana J. Crum. Following Crum’s death in May 1995, Henry Lipscomb, the propounder of the will and later the executor of the estate, sought to probate the will in solemn form. Lipscomb notified Daniel that he was in possession of the will, and informed her that the will disinherited her and put all of her late mother’s property into trust for Daniel’s children. He faxed Daniel a copy of an acknowledgment of service and assent to probate instanter, and requested her signature on it. This document stated that “the undersigned . . . hereby acknowledge^] service of the petition to probate said will in solemn form and notice . . . and hereby assent[s] to the probate of said will in solemn form without further delay.” This document had the dual purpose of allowing Lipscomb to probate the will while simultaneously waiving the signer’s rights to challenge the will once probated.

Although he provided her with a copy of the acknowledgment and assent for her signature, Lipscomb did not provide Daniel with a copy of the petition to probate or a copy of the will itself. Daniel repeatedly requested that Lipscomb provide her with a copy of the will. Lipscomb refused these requests, assured Daniel that he was in possession of the original will, and informed her that she could not have a copy of the will until it had been probated. He also informed her that her signature on the acknowledgment and assent would prevent the sheriff from having to personally serve her with a copy of the petition to probate. Daniel asserts that in reliance upon these representations, she signed the acknowledgment without ever having had the opportunity to read the will.

Following the probate of the will, Daniel read the will and discovered that Lipscomb had correctly represented to her that the will disinherited her. She then filed a caveat to the will, and learned that by signing the acknowledgment, she had waived all her objections to the will. Her motion to set aside the petition admitting the will to probate followed, and was denied by the trial court.

1. Daniel contends that the acknowledgment and assent should have been set aside based on mutual mistake of fact. She alleges that both she and Lipscomb were mistaken as to the effect of execution of the acknowledgment and assent. According to Daniel, they both mistakenly believed that the sole effect of her execution of the acknowledgment and assent was to prevent the sheriff from having to personally serve her with a copy of the petition to probate the will.

In order to justify relief in equity to a party claiming mistake, “the evidence should be clear, unequivocal, and decisive as to the mistake. . . . [0]n the ground of mutual mistake, equity will not reform a written contract unless the mistake is alleged and proved to be the mistake of both parties” (Emphasis supplied.) Scurry v. Cook, 206 Ga. 876, 879-880 (59 SE2d 371) (1950); see also OCGA § 23-2-21 (c). “[A] mutual mistake is one which is reciprocal and common to all of the parties to the transaction.” Id. at 879.

Although Daniel may have mistakenly believed that her signature on the acknowledgment operated solely to prevent her from being personally served, she has not shown by clear and unequivocal evidence that Lipscomb shared her mistake. The evidence, provided by Daniel’s own affidavit, indicates that Lipscomb understood Daniel’s signature on the acknowledgment to have a wider effect than only preventing personal service by the sheriff: the signature actually allowed him to probate the will. Because Daniel’s mistaken belief as to the sole effect of her signature on the acknowledgment was not reciprocal and common to Lipscomb, Daniel is not entitled to set aside the acknowledgment and assent to probate based upon mutual mistake of fact.

2. Daniel argues that because Lipscomb was the executor of the estate, he had a fiduciary duty to tell her the truth regarding the legal effect of her signature on the acknowledgment of service and assent to probate. The probate court rejected this argument, and found that because Lipscomb was not the executor of the estate when the alleged fraud occurred, no such fiduciary duty could have existed. Daniel enumerates this finding as error.

The record indicates that in reliance upon Lipscomb’s representations regarding the acknowledgment and assent, Daniel signed that document on June 6,1995. At this time, Lipscomb had not qualified as the executor of the estate, and he was still only the propounder of the will. More than 20 days after the alleged fraud occurred, on'June 28, 1995, Lipscomb qualified as executor of the estate.

Although Daniel is correct that an executor is a fiduciary who owes a duty of confidentiality and “the utmost good faith” to those to whom he administers, see Liner v. North, 188 Ga. App. 677, 678 (373 SE2d 846) (1988), the law confers no such fiduciary and confidential status on the propounder of a will prior to his qualification by the court as executor. See Charles v. Simmons, 215 Ga. 794, 795-796 (113 SE2d 604) (1960); Ingram v. Rooks, 221 Ga. 701, 702 (146 SE2d 743) (1966). This is so even where, as here, the propounder is named as executor in the will itself. See Simmons, supra at 795-796. Inasmuch as Lipscomb was not the executor of the will when the alleged fraud occurred, he breached no executor’s duty to tell Daniel the truth regarding the effect of her signature on the acknowledgment and assent to probate.

Lipscomb’s lack of executor status notwithstanding, the failure to tell the truth can in some instances constitute fraud. “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by the plaintiff, and damage to the plaintiff.” (Punctuation omitted.) Eason Publications v. NationsBank of Ga., 217 Ga. App. 726, 730 (3) (458 SE2d 899) (1995). The probate court found that Daniel failed to exercise due diligence in signing the acknowledgment and assent, and therefore her reliance upon Lipscomb’s representations was not justifiable. In reviewing this finding, we note that questions of due diligence are most often reserved for the trier of fact, and when, as in this case, the trial court sits as the finder of facts, its findings will not be disturbed unless clearly erroneous. See Jung v. Cheoun, 216 Ga. App. 490, 492 (455 SE2d 310) (1995); Hanson v. Tallant, 265 Ga. 669, 670 (461 SE2d 225) (1995).

With respect to the justification of Daniel’s reliance upon Lipscomb’s assertions as to the effect of her signature, the acknowledgment itself clearly states that Daniel “hereby assent[s] to the probate of said will in solemn form without further delay.” Although Lipscomb may have told Daniel that signing the form would only avoid personal service of the form by the sheriff, this assertion does not go to the contents of the form itself. As the probate court noted in its order, Daniel is charged with having actually read what she signed, and the document plainly states that it is an assent to probate. If Daniel did not know what an assent to probate was, she had the duty to exercise due diligence to find out before agreeing to it. As Daniel could easily have determined from reading the acknowledgment and assent, its purpose was broader than the prevention of personal service by the sheriff, and Daniel’s reliance upon Lipscomb’s representations in this regard was not justified.

Decided February 17,1997

Reconsideration dismissed March 5,1997

Kevin J. Rodgers, for appellant.

Loewenthal, Jackson & Brown, Robert J. Loewenthal, for appellee.

This is so notwithstanding the fact that Lipscomb did not provide Daniel with a copy of the will before she assented to its probate. Daniel admits that Lipscomb told her prior to her signature on that document that the will disinherited her and put all of her mother’s property in trust for Daniel’s children. Armed with this knowledge, she did no more than make several requests of Lipscomb for a copy of the will. The trial court found that these requests did not amount to due diligence. Daniel failed to compel production of the will from Lipscomb pursuant to OCGA § 53-3-3, and in the two weeks that elapsed between her signature on the acknowledgment and assent and the probate of the will, she had “ample time to discover the fraud and prevent the consequences by the exercise of proper diligence.” Simmons, supra at 796. Furthermore, Daniel could simply have refused to sign the assent without first being provided a copy of the will.

Daniel is not entitled to set aside the probate of a will she assented to with knowledge that it disinherited her, when she failed to exercise reasonable diligence under the circumstances to obtain a copy of the will. Cf. Hightower v. Williams, 104 Ga. 608, 610 (30 SE 862) (1898) (disinherited children should exercise diligence with regard to their parents’ wills). Furthermore, inasmuch as she knew that the will disinherited her before she signed the acknowledgment and assent to probate, she has failed to show how she was harmed by Lipscomb’s refusal to show her a copy of the will. As the probate court’s findings that Daniel failed to exercise due diligence are not clearly erroneous, we must therefore affirm its finding on this issue.

3. We need not address Daniel’s remaining two enumerations of error, as neither contains any citation of authority or references to the record. See Court of Appeals Rule 27 (c) (2) and (c) (3) (i).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       Although Daniel’s argument extensively addresses mistake on behalf of one party and fraud on behalf of the other, her enumeration of error addresses only mutual mistake of fact, and our review is limited accordingly. “On appeal an enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration.” (Punctuation omitted.) Bob v. Hardy, 222 Ga. App. 550, 554 (5) (474 SE2d 658) (1996).


author: Beasley, Judge.

text:
    A96A1994, A96A1995.
    ST. JOSEPH HOSPITAL, AUGUSTA, GEORGIA, INC. et al. v. BLACK (two cases).
    (483 SE2d 290)
   Beasley, Judge.

Black filed a petition under OCGA § 9-11-27 (a) to perpetuate the testimony of Paugh, the chief executive officer of St. Joseph Hospital, prior to the filing of a complaint. She anticipated filing a medical malpractice suit against Dr. Owen, who had performed surgery on her, and against St. Joseph Hospital for negligently granting Owen staff privileges. Black contended Paugh had documentary information concerning hospital policies and the decision to grant Dr. Owen staff privileges which would allow her to prepare an affidavit attesting to the hospital’s negligence. Black apparently views her negligent hiring claim against the hospital as one alleging professional malpractice within the ambit of OCGA § 9-11-9.1 (a).

St. Joseph has filed separate appeals of the court’s grant of the petition (Case No. A96A1994) and the denial of its motion for reconsideration of that decision (Case No. A96A1995). It filed its motion for reconsideration of the order granting Black’s petition on April 18, 1996. On April 24, it filed the notice of appeal from that same order, which has resulted in Case No. A96A1994. However, “ ‘ “ ‘[a] notice of appeal from [a] judgment, filed while a motion for [reconsideration of judgment] is pending . . . confers no jurisdiction in the appellate court and results in [the] dismissal of the appeal.’ ” (Cit.)’ [Cit.]” Auld v. Weaver, 196 Ga. App. 782, 783 (397 SE2d 51) (1990); accord Griffin v. Loper, 209 Ga. App. 504 (433 SE2d 653) (1993). The notice of appeal from the denial of reconsideration (Case No. A96A1995) is timely and properly before us.

1. In its first three enumerations, St. Joseph contends the petition did not allege a proper basis for granting relief under OCGA § 9-11-27. “[T]he purpose of [OCGA § 9-11-27 (a)] is to provide for perpetuation of testimony in situations where, for one reason or another, testimony might be lost to a prospective litigant unless steps are taken immediately to preserve and protect such testimony. [OCGA § 9-11-27 (a)] does not provide a substitute for discovery or a method to determine whether a cause of action exists. This code section cannot be used for the purpose of ascertaining facts to be used in drafting a complaint.” Worley v. Worley, 161 Ga. App. 44, 45 (288 SE2d 854) (1982). As in Worley, Black’s petition “does not allege that the testimony sought to be preserved is in danger of being lost and ‘there is no evidence that the testimony of persons with knowledge of the material facts relevant to (appellee’s) proposed lawsuit will be ■unavailable after a complaint is filed.’ [Cit.]” Id. at 45-46.

Not only is this prerequisite allegation absent, Paugh’s affidavit indicates there is no such danger. The only reason Black states to establish a need for pre-complaint discovery is the desire to acquire information to prepare an affidavit under OCGA § 9-11-9.1. Thus, the purpose is to enable her to ascertain facts to be used in preparing her complaint, which is prohibited. Even assuming that a claim against the hospital for negligently granting staff privileges would be a malpractice action requiring an affidavit under OCGA § 9-11-9.1, that would not necessitate the use of OCGA § 9-11-27 (a) in the manner Black attempted. Discovery is not required to prepare a malpractice affidavit.

“ An expert affidavit filed with a complaint pursuant to OCGA § 9-11-9.1 need not be based upon the affiant’s actual personal knowledge. To the contrary, the affiant may base his expert opinion upon an assumption that the factual allegations of the complaint are true . . . just as he could base his expert opinion at trial upon an assumption of the truth of the evidence adduced to support those allegations.’ [Cit.]” (Emphasis in original.) Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 68 (4) (424 SE2d 632) (1992). “ ‘ “What OCGA § 9-11-9.1 (a) requires is that the expert affidavit set forth specifically at least one negligent act or omission ‘claimed to exist’ and the factual basis for each such claim. ... It is unnecessary for the . . . plaintiff to . . . prove the alleged facts. . . . (W)here a . . .complaint asserts a damage claim and alleges professional malpractice, it is only necessary that there be filed contemporaneously with the filing of the complaint the affidavit of an expert stating that, in his expert opinion, such facts, if true, would constitute professional malpractice. . . .” ’ [Cit.]” (Emphasis in original.) Id.

The court erred in granting Black’s petition.

2. St. Joseph also contends the court erred in determining certain documents were not privileged under OCGA §§ 31-7-133 and 31-7-143; see also OCGA § 31-7-15 (b). Black has since, in a separate proceeding, filed a complaint against St. Joseph and Dr. Owen. The trial court did not require the production of any documents as to which St. Joseph now claims a privilege. It declared that hospital medical staff by-laws, rules and regulations pertaining to the practice of medicine and/or surgery, and policies and procedures related to appointment of staff physicians are discoverable. St. Joseph does not argue these documents are privileged, only Dr. Owen’s application for staff privileges, documents reflecting the grant of such privileges, and Dr. Owen’s entire personnel file. These documents were not declared discoverable but were to be deposited with the court for a determination whether the privileges applied. The record shows no decision that such records are discoverable, so it presents no issue for resolution by this Court. To the extent that the order purported to allow Dr. Paugh to be deposed as to the contents of documents which the court had not yet ruled were discoverable, it was in error.

Decided February 4,1997

Reconsideration denied March 5,1997.

Hull, Towill, Norman & Barrett, Timothy E. Moses, Patrick J. Rice, Douglas D. Batchelor, Jr., for appellants.

Sam G. Nicholson, for appellee.

Appeal dismissed in Case No. A96A1994. Judgment reversed in Case No. A96A1995.

Birdsong, P. J, and Blackburn, J., concur.


text:
    A96A2165.
    CLAYTON et al. v. EDWARDS.
    (483 SE2d 111)
   Blackburn, Judge.

Clayton’s Collection & Recovery Service, Inc. (CCR) and J. Kenneth Clayton appeal the denial of their motion for summary judgment on Richard Lee Edwards’ claim for damages arising out of an automobile accident in which Edwards was injured.

Clayton is the owner and president of CCR, a corporation in the business of repossessing automobiles for lenders. In September 1992, CCR was hired by NationsBank to repossess a 1989 Chevrolet Astro van. CCR subcontracted the repossession assignment out to Robbie Johnson, an independent contractor who performed about half of CCR’s repossessions at the time.

Johnson came to CCR’s office to pick up a key to the van. At about the same time, Brian Hall, another individual CCR used from time to time to repossess vehicles, came to CCR’s office to borrow Clayton’s personal pickup truck to move some' of Hall’s personal belongings. Clayton loaned Hall his pickup truck, which contained a hoist that could be used for towing vehicles. Clayton did not hire Hall to repossess the Chevrolet Astro van and did not authorize Hall to use Clayton’s truck to assist Johnson in the repossession.

The next morning, Clayton found the repossessed van and Clayton’s pickup truck in CCR’s parking lot. Clayton noticed that the truck had been damaged as if it had been in an accident. CCR paid Johnson his fee for repossessing the van.

As it turns out, Hall had assisted Johnson in the repossession and was involved in an accident with Edwards while towing the van with Clayton’s personal pickup truck. Clayton testified that he and CCR were unaware of any involvement by Hall in the repossession.

Edwards brought this action against Clayton and CCR, alleging that they were liable for Hall’s negligent acts under theories of agency, respondeat superior and ratification. The trial court denied Clayton and CCR’s motion for summary judgment, finding there were issues of fact as to whether they ratified Hall’s actions. For the reasons discussed below, we reverse the trial court’s- denial of summary judgment as to Clayton and CCR.

This Court considers de novo the entire record before it on review of denial of a motion for summary judgment to determine if there were genuine issues of material fact which would preclude summary judgment or whether, instead, any such disputes were immaterial and the movant was entitled to summary judgment as a matter of law. Cambridge Mut. Fire Ins. Co. v. Okonkwo, 218 Ga. App. 59, 61 (1) (460 SE2d 302) (1995). If a defendant who will not bear the burden of proof at trial points to an absence of evidence to support the plaintiff’s case, the plaintiff, to avoid summary judgment, may not rest on his pleadings, but must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Under Georgia law, an employer is generally not liable for the torts of an independent contractor. OCGA § 51-2-4. OCGA § 51-2-5 (5), however, provides an exception to this general rule of nonliability where “the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference.” Edwards argues that CCR exercised sufficient control over Hall to render it liable for Hall’s torts.

This argument is without merit. The undisputed evidence shows that CCR hired Johnson, not Hall, to repossess the van. Clayton testified that CCR exercised no control over the time or manner of repossessing the van, but left such matters to Johnson’s discretion. See Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891 (3) (412 SE2d 876) (1991) (chief test for determining independent contractor relationship is “ ‘ “whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract” ’ ”). Edwards has offered no evidence to contradict this testimony or to show that CCR exercised control over Johnson’s work.

Instead of presenting evidence that Johnson was subject to CCR’s control, Edwards points to a provision in Hall’s standing contract with CCR in an attempt to show the requisite degree of control by CCR over Hall. This contract provided that Hall would repossess vehicles identified to Hall by CCR and would be paid a fee per vehicle repossessed. Although the contract stated that CCR “will not teach, dictate, describe, or indicate the method to be used in repossessing vehicles,” and that Hall “is free to locate and repossess vehicles at any time convenient to [Hall],” it also stated that Hall “shall be furnished with a suitable vehicle, which he shall use to repossess any and all vehicles, whose identity is provided to [Hall] by [CCR].” Edwards argues that this provision demonstrates that CCR exercised sufficient control over Hall’s actions to subject CCR to liability.

Edwards’ argument is without merit, since Hall’s contract is not applicable to the repossession at issue. Hall’s contract governs only those situations in which CCR hires Hall to repossess a vehicle. In this case, the undisputed evidence shows that CCR hired Johnson to repossess the van as an independent contractor. As an independent contractor, Johnson was free to hire and pay assistants at his discretion. If Hall participated in the repossession, it was not pursuant to his standing contract with CCR, but pursuant to a separate agreement between Hall and Johnson. As there is no evidence that Johnson had a similar written contract with CCR requiring him to use specified trucks to effect repossessions or otherwise giving CCR control over the time, manner and method of performing his work, CCR is not liable under OCGA § 51-2-5 (5) for Johnson’s assistant’s alleged torts.

2. OCGA § 51-2-5 (6) creates an additional exception to the general rule of nonliability where “the employer ratifies the unauthorized wrong of the independent contractor.” However, this exception also is not applicable in this case. For an employer to be liable for the acts of its independent contractor, it must ratify the unauthorized wrongful acts of the contractor. OCGA § 51-2-5 (6); Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987). “Ordinarily, in order to ratify an act, one must have knowledge of the act.” (Citations and punctuation omitted.) Id. “Where the principal ratifies the tort of the agent after its commission, the liability of the principal is the same as if he had commanded it, provided the ratification is had with full knowledge on the part of the principal of the manner in which the tort was committed.” Stinespring v. Fields, 139 Ga. App. 715, 717 (1) (229 SE2d 495) (1976).

Clayton testified that he and CCR were unaware of any involvement by Hall in the repossession. Edwards has presented no evidence to contradict this testimony or to show that CCR and Clayton had knowledge of the circumstances surrounding the accident. Therefore, there is no factual question as to whether CCR and Clayton ratified the alleged wrongful act.

Furthermore, the fact that CCR accepted its fee for the repossession and paid Johnson for his services does not demonstrate that CCR ratified Hall’s alleged wrongful acts. “[Acceptance of benefits will not ratify an independent collateral tort committed in procuring the benefit, as the ratification must be, not of the contract, but of the unauthorized wrong. [Cit.]” Southern Mills v. Newton, 91 Ga. App. 738, 743 (2) (b) (87 SE2d 109) (1955).

Decided January 27,1997

Reconsideration denied March 5,1997

Casey, Gilson & Williams, Robert E. Casey, Jr., Sandra Gray, Matthew P. Stone, Thomas G. Hotard, Jr., for appellants.

Sullivan, Hall, Booth & Smith, Robert L. Shannon, Jr., Alfonza Pearl, for appellee.

3. Edwards has not presented any evidence sufficient to impose personal liability on Clayton. There is no evidence that Clayton personally entered into any agreement with either Hall or Johnson regarding repossession of the van. Clayton’s status as officer and shareholder of CCR does not render him personally liable for corporate acts. See Commonwealth Financial Corp. v. Sherrill, 197 Ga. App. 403 (1) (398 SE2d 438) (1990). Edwards has not alleged or offered any evidence that Clayton was negligent in entrusting his personal vehicle to Hall. Accordingly, Clayton is entitled to summary judgment on all claims against him personally.

4. Edwards’ argument that this appeal should be dismissed because the trial court’s certificate of immediate review did not conform to the exact language of OCGA § 5-6-34 (b) is without merit. The certificate issued by the trial court stated that “immediate review of this Court’s Order denying the Motion for Summary Judgment of Defendants J. Kenneth Clayton and Clayton’s Collection and Recovery, Inc. should be had, and that direct appeal of such matter is proper.” OCGA § 5-6-34 (b) provides for interlocutory appeal where the trial court certifies that the order “is of such importance to the case that immediate review should be had.” The language used by the trial court substantially complies with the statute, and this appeal is therefore proper. See Bibb County v. McDaniel, 127 Ga. App. 129 (1) (192 SE2d 544) (1972) (allowing appeal where substantial compliance with statute shown); State Hwy. Dept. v. Lord, 123 Ga. App. 178, 179 (1) (179 SE2d 780) (1971) (same).

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A96A2453.
    WAFFLE HOUSE, INC. v. PADGETT.
    (483 SE2d 131)
   Smith, Judge.

We granted the employer’s application for discretionary appeal in this workers’ compensation case to address the issue of whether a claimant who is terminated from employment while receiving temporary partial disability payments must show a diligent, unsuccessful search for other employment in order to claim total disability. We hold that such a claimant must show all the elements of a change in condition claim outlined in Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995), including a diligent search for work.

Scarlett O’Hara Padgett suffered a work-related injury in February 1993. She received temporary total disability payments until she returned to light-duty work in November 1993. She was terminated in September 1994 but continued to draw temporary partial disability. Thereafter, Padgett filed a claim seeking temporary total disability benefits, alleging a change in condition for the worse due to her inability to find other employment. She did not and does not contend that her disability is physical in nature.

In his findings of fact and conclusions of law, the administrative law judge (ALJ) found that Padgett was terminated as a result of her disability and that this fact in itself authorized the award of total disability benefits without consideration of whether she had conducted a diligent search for employment. The ALJ, however, made the additional finding of fact that Padgett “did not meet her burden of proving an inability to find employment as a result of her injury.” The appellate division accepted the award of the ALJ. The employer appealed to the superior court, which affirmed the decision on a different basis. The superior court held that Padgett was required as a matter of law to show a diligent search for work, but it also concluded that she had made that showing. Because the superior court was not authorized to reach this conclusion, we reverse.

“In order to receive workers’ compensation benefits based on a change in condition, a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant’s good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability.” Maloney, supra, 265 Ga. at 828.

The superior court correctly held that the cause of Padgett’s termination is not dispositive of her claim of change in condition. In reviewing a claim of economic rather than physical change in condition, the finder of fact must consider whether the claim is supported by a diligent effort to find other work. “[T]he focus here is the question of a compensable disability after the termination of subsequent employment which inhibits other work. The ALJ specifically found thát [Padgett] did not attempt to get other employment.” Gilbert! Robinson, Inc. v. Meyers, 214 Ga. App. 510, 512 (448 SE2d 246) (1994).

Padgett’s contention that she need not show a diligent search for work, based on Richardson v. Dennis, Corry &c., 216 Ga. App. 476, 477 (454 SE2d 643) (1995), is without merit. In that case, it was undisputed that Richardson suffered from a total disability due to his injury and was unable to work at all. While acknowledging that a totally disabled worker who is physically unable to perform any work need not “engage in a purposeless demonstration,” this Court clearly distinguished Richardson’s situation from that of “employees who were partially disabled, but were physically able to work.” Id. at 477. In this case, it is undisputed, and the ALJ found, that Padgett had been released to light-duty work, was working prior to her termination, and was able to work. Padgett’s claim was based not on total physical disability but on her alleged inability to find other employment; she therefore must satisfy the requirements of Maloney, including a diligent search for other employment.

The superior court erred, however, in contravening the findings of the ALJ and the appellate division that Padgett failed to conduct a diligent job search. ‘When reviewing the decisions of the Board and ALJ, the superior court sits as an appellate body and is bound by the any evidence standard of review. It may not set aside an award merely because it disagrees with the conclusions of the Board and may not substitute its judgment as to weight and credibility of the witnesses. The Board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award.” (Citations and punctuation omitted.) L.C.R Chemicals v. Strickland, 221 Ga. App. 742, 743 (472 SE2d 471) (1996) (superior court could not contravene ALJ’s finding that claimant failed to conduct a diligent search for work). While the superior court rejected the opinion testimony of a job specialist as improperly based on hearsay, other evidence supported the ALJ’s finding under the applicable standard of review. Testimony was given that Padgett did not contact certain employers she claimed to have contacted, that she submitted altered employment applications to the court, and that Padgett told a prospective employer that “she had a case against Waffle House and she wanted to prove that she was unable to find a job.” When supported by any evidence, the findings of the State Board of Workers’ Compensation are conclusive and binding. South Ga. Timber Co. v. Petty, 218 Ga. App. 497, 498 (462 SE2d 176) (1995). The ALJ and the appellate division found that Padgett failed to conduct a diligent search for other employment, and neither the superior court nor this Court is authorized to reverse this finding.

Decided February 21,1997

Reconsideration denied March 5,1997

Goldner, Sommers, Scrudder & Bass, Alfred A. Quillian, Jr., Tiffany T. Norman, for appellant.

Perkins & Perkins, Clifford C. Perkins, Jr., for appellee.

Despite the existence of a temporary partial disability at the time of her termination, Padgett was required to show all the elements of an economic change in condition claim as outlined in Maloney, including a diligent, unsuccessful search for work. In light of the Board’s finding that she did not meet her burden of proof as to this issue, we must conclude that Padgett failed to meet the Maloney test and that the trial court therefore erred in awarding total disability benefits.

Judgment reversed.

Andrews, C. J., and Pope, P. J., concur.

       We question whether the testimony of this witness, who qualified as an expert, was in fact inadmissible. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592-593 (4) (452 SE2d 159) (1994). Compare McEver v. Worrell Enterprises, 223 Ga. App. 627, 629-631 (2) (478 SE2d 445) (1996) (expert’s testimony as to motives and state of mind of employers inadmissible as based entirely on hearsay). But it is not necessary to reach that issue.


text:
    A96A2458.
    LATHAM v. THE STATE.
    (483 SE2d 322)
   Blackburn, Judge.

Christal Latham appeals from the trial court’s refusal to consider her motion to modify sentence, which she filed outside the term of court at which her sentence was imposed. Because the trial court properly determined it had no jurisdiction to consider the motion, we affirm.

Latham pled guilty to four counts of selling methamphetamine. The trial court afforded her first offender treatment and sentenced her to seven years in prison and twenty-three years on probation. Because Latham was pregnant at' the time of her sentencing in September 1995, the court allowed her to remain on probation until after the birth of her child. In April 1996, before she began serving her prison sentence, Latham moved the court to eliminate the prison term from her punishment. The trial court found that because Latham filed her motion after the term of court at which she was sentenced, it had no power to consider the motion.

Latham acknowledges the many appellate cases of this state holding that a trial court loses power to modify, suspend, or vacate its judgments after the term at which they are rendered. See, e.g., Bowen v. State, 239 Ga. 517, 518-519 (2) (238 SE2d 62) (1977); Pledger v. State, 193 Ga. App. 588 (2) (388 SE2d 425) (1989). She contends, however, that OCGA § 17-10-1 (a), as amended by the legislature in 1992, changed the law that governs this issue.

As formerly written, OCGA § 17-10-1 (a) required a trial judge to sentence certain convicted felons to a determinate prison term but granted the court power to suspend or probate a portion of that sentence. The former statute further provided that “[a]fter the term of court, or 60 days from the date on which the sentence was imposed by the judge, whichever time is greater, [the trial court] shall have no authority to suspend, probate, modify, or change the sentence of the defendant” except with regard to the term of probation. In 1992, the legislature amended the statute, and part of its amendment eliminated this time-limit provision. Ga. L. 1992, p. 3221, § 1. Latham’s argument that this amendment empowers the trial court to modify a prison sentence at any time is without merit.

First, the rule which prevents a trial court from modifying its judgments after the term of court at which they are rendered is not dependent on the statute at issue. Rather, this rule was created by courts to give stability to their decisions by maintaining the finality of judgments. “Courts cannot at their pleasure reopen questions which have been concluded by solemn adjudication. There must be some point at which stare decisis applies, and that point, with respect to a judgment upon the merits, unexcepted to, is the conclusion of the term at which it is rendered.” East Tenn., Va. &c. R. Co. v. Greene, 95 Ga. 35, 36 (22 SE 36) (1894). As the United States Supreme Court has held, “In the absence of a statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term.” United States v. Mayer, 235 U. S. 55, 67 (1) (35 SC 16, 235 LE 129) (1914). See also South v. State, 72 Ga. App. 79, 82 (33 SE2d 23) (1945).

The mere fact that a statute has been enacted, and repealed, concerning the time limits on the court’s authority does not alter the judicial rule. The appellate courts have faced a similar question regarding the effect of the Civil Practice Act, with its statutory specifications as to when the trial court may set aside a judgment, OCGA § 9-11-60, and have held that statutory scheme does not abrogate the court’s inherent power during the term. See Ammons v. Bolick, 233 Ga. 324, 325 (1) (210 SE2d 796) (1974); see also Bowen, supra, comparing this power in criminal and civil matters. In this case, likewise, the mere fact that a statute on this issue once existed does not change the scope of the court’s inherent power. See Pledger, supra at 589 (inherent power of court in criminal case not modified by statute).

Latham’s sentence was a final, appealable judgment. See Brainard v. State, 246 Ga. 586 (272 SE2d 683) (1980), in which the court held that a first offender who failed to timely appeal his sentence could not later raise that issue. Because Latham made no effort to contest her sentence within the time for appeal or within the term of court, the trial court had no power to modify that ruling unless a statute authorized such action. Mayer, supra. Therefore, the question is whether the current version of OCGA § 17-10-1 would authorize the trial court to eliminate Latham’s prison term from her sentence.

The statute at issue, OCGA § 17-10-1, does not grant the trial court unlimited time in which to modify its sentences. Although subsection (a) (5) (A) of the statute does grant the trial court continuing jurisdiction over the probated portion of a sentence, no similar language grants the trial court power to modify the term of incarceration. See also OCGA §§ 42-8-60 and 42-8-62, applicable to first offendérs, containing no provision allowing the trial court to reduce a term of incarceration. The legislature deleted the time limitations from OCGA § 17-10-1, but that act alone does not show an intent to grant the trial court unlimited authority to modify a prison sentence. The caption of the amending law states that its purposes include “changing] provisions relating to continuing jurisdiction over probated sentences,” but makes no mention of prison sentences or of enhancing the trial court’s power. (Emphasis supplied.) Ga. L. 1992, p. 3221. “In construing legislation, nothing is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature’s own interpretation of the scope and purpose of the act, as contained in the caption.” (Punctuation omitted.) Copher v. Mackey, 220 Ga. App. 43, 45 (4) (467 SE2d 362) (1996). Neither., the language nor the caption of this statute gives any indication the legislature intended, by repealing part of the statute, to grant additional powers to the trial court.

Furthermore, “[i]t is the duty of the court to consider the results and consequences of any proposed [statutory] construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.” (Punctuation omitted.) Proo v. State, 192 Ga. App. 169, 170 (384 SE2d 197) (1989). In the absence of a clear directive from the legislature, we will not presume it intended by this law to give the trial courts unlimited continuing jurisdiction over an entire sentence, including the prison term of a sentence. If it so intended, the legislature would not have specified in subsection (a) (5) (A) of the statute that the trial court “shall retain jurisdiction throughout the period of [a] probated sentence.” See also OCGA § 42-8-60 (trial court may take further action against first offender who is on probation). A statute must be construed and harmonized to give meaning to every part, and the interpretation Latham urges would render this subsection superfluous. See Gilbert v. Richardson, 264 Ga. 744, 748 (3) (452 SE2d 476) (1994). In this case, neither the language nor the intent of OCGA § 17-10-1 can reasonably be interpreted to alter the longstanding principle that the court’s power to modify its judgment ends with the term. The trial court properly refused to consider her motion to modify sentence.

Decided February 17,1997

Reconsideration denied March 5,1997

Jill L. Anderson, Lee W. Fitzpatrick, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Beasley, J, concur.