author: Beasley, Chief Judge. Smith, Judge, McMurray, Presiding Judge,

text:
    A94A2378.
    BANDY v. MILLS et al.
    (454 SE2d 610)
   Beasley, Chief Judge.

Bandy sued her former employer and its board chairman and chief operating officer, Mills, for fraud. She alleged that Mills, as agent for the employer, induced her to accept employment and move to Glynn County in June 1992, upon the representation that she would participate in the Executive Bonus Plan during her employment, beginning with not less than $20,000 for the remainder of 1992. She alleged that she received $20,000 for 1992 but received nothing for 1993 although she remained in employment until September. It was further alleged that bonuses were declared several days after her departure. She claimed that she was due $40,000 as her 1993 bonus, plus punitive damages and attorney fees. The alleged fraud was in offering the inducement with knowledge that it would not be honored.

Mills and the defendant employer, a corporation, denied liability and moved for summary judgment after discovery was conducted. Upon review of the entire record, the trial court granted summary judgment, explaining its reasoning in a crisp and appropriate order.

“ ‘On appeals from grants of summary judgment, it is this court’s function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains. (Cit.)’ Lewis v. Rickenbaker, 174 Ga. App. 371, 372 (330 SE2d 140) (1985).” Dixie Diners Atlanta v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364, 366 (1) (439 SE2d 53) (1993). Our review is de novo. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Defendants may prevail on summary judgment under OCGA § 9-11-56 (e) “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

There are five elements of fraud, as pointed out by the trial court. Wiederhold v. Smith, 203 Ga. App. 877, 878 (1) (418 SE2d 141) (1992). It is unnecessary to consider any element beyond the first, as the representation upon which plaintiff Bandy relies was not false. It is contained in a letter to her from Mills dated June 5, 1992. The letter welcomes her to the company and confirms, among other employment items, that: “2. You will participate in our Executive Bonus Plan — and for the remainder of 1992 that amount will not be less than $20,000.”

Appellant argues that this statement implied that she would participate in the plan until she was no longer an executive or there ceased to be a plan, but her contended understanding does not create a jury issue as to meaning. The only representation made concerning her right to a bonus was that she would receive $20,000 for 1992. She did not allege, nor was there any evidence, that the plan grants a vested right to a bonus or a pro rata bonus if employment is terminated before a bonus is declared.

Not only does a consideration of the face of the letter resolve the issue, it is confirmed by plaintiff’s own deposition, the relevant parts of which are contained in the record without objection. She testified that when she met with Mills, he said nothing about the bonus plan or about what the amount of any bonus for 1993 would be, other than that she would receive a bonus of at least $20,000 for 1992. Her stated position was that it was implied. She acknowledged that the sole basis for her claim was the statement in the letter, and that this letter constituted the employment agreement. She also conceded that no one lied to her about it at the time she was hired. No one told her how any future bonuses would be computed, and she assumed they would be calculated the same way as her 1992 bonus.

Based on the record which was before the trial court and is before this court, which record itself is not in dispute, summary judgment for defendants was demanded.

Appellees’ motion for a penalty for frivolous appeal under Court of Appeals Rule 26 (b), now Rule 15 (b), is denied.

Judgment affirmed.

Andrews, Johnson and Blackburn, JJ., concur. Birdsong, P. J., Pope, P. J., Smith and Ruffin, JJ., concur specially. McMurray, P. J., dissents.

Smith, Judge,

concurring specially.

I write separately only to point out that this decision emphasizes the value of the reconsideration process in this court. This case originally was decided by a three-judge division of this court, a division of which I was a member. It was originally decided as a reversal of the trial court, and that decision, like all panel decisions of this court, was necessarily unanimous. Appellees’ motion for reconsideration, however, cogently pointed out why that decision was incorrect; now the whole court has reached a different, and I believe correct, conclusion in affirming the trial court.

Although a motion for reconsideration in this court is no longer a prerequisite to the filing of an application for certiorari in the Georgia Supreme Court, this case is an object lesson in why that reconsideration procedure remains viable and valuable.

I am authorized to state that Presiding Judge Birdsong, Presiding Judge Pope and Judge Ruffin join in this special concurrence.

McMurray, Presiding Judge,

dissenting.

In my view the defendants, as movants on a motion for summary judgment, have failed to satisfy their burden of “pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). This occurs because the portions of plaintiff’s deposition upon which defendants rely and which are referenced as contributing to the holding of the majority have not been properly filed in the superior court so as to become evidence for the superior court’s consideration in ruling upon defendants’ motion for summary judgment. “Since the deposition was not filed, it was not a matter of record for the trial judge’s consideration in ruling on the motion for summary judgment. [Cit.]” Carter v. Myers, 204 Ga. App. 498, 499 (1) (419 SE2d 747).

In the case sub judice, uncertified excerpts from depositions were attached as exhibits to defendants’ motion for summary judgment and to plaintiff’s response. The majority has viewed these excerpts as evidence which was properly considered by the superior court. Indeed, this is consistent with the holding in Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604), although the majority has not cited Jacobsen. However, in my view the construction of OCGA § 9-11-29.1 (a) (5) in Jacobsen was incorrect and that case should be overruled.

The fatal flaw in the analysis stated in Jacobsen lies in its failure to consider two additional statutory provisions. First, OCGA § 9-11-29.1 (a) (5) must be viewed within its context as a subpart of OCGA § 9-11-29.1 (a), which begins with the statement that: “(a) Depositions and other discovery material otherwise required to be filed with the court under this chapter shall not be required to be so filed unless: . . .” Five subparts, including OCGA § 9-11-29.1 (a) (5), then follow which describe circumstances which will remove this tolling of the filing requirements, for depositions or other discovery materials, “otherwise required” under OCGA Chapter 9-11. Thus, when the circumstances described in OCGA § 9-11-29.1 (a) (5) are determined to have occurred, the remainder of OCGA Chapter 9-11 must be examined to locate any applicable filing requirements. One provision applicable to depositions is OCGA § 9-11-30 (f) (1) (A), which requires that the court reporter certify and seal the deposition before filing it, albeit under the circumstances addressed in OCGA § 9-11-29.1 (b), the court reporter may entrust the sealed original deposition to the safekeeping of the party taking the deposition pending any filing. While it is true that as stated in Jacobsen, “OCGA § 9-11-29.1 (a) (5) does not make certification a prerequisite to the use of discovery material in support of a motion,” (id. at 383 (3)), this analysis fails to recognize that such a requirement is imposed by OCGA § 9-11-30 (f) (1) (A). I would hold that the superior court erred in relying upon the uncertified excerpts from depositions filed with defendants’ motion for summary judgment.

Decided February 24, 1995.

John T. McKnight, for appellant.

Fisher & Phillips, David E. Duelos, Walter J. Kruger III, Tillman Y. Coffey, for appellees.

Also, the practice of filing excerpts from depositions must be questioned since OCGA § 9-11-30 (f) (1) (A), by requiring the sealing of the original deposition before filing, would seem to anticipate the filing of the entire deposition if at all. The references in OCGA § 9-11-29.1 (a) (5) to filing “portions” of discovery materials may not authorize division of discrete entities such as depositions.

Finally, while plaintiff made no objection in the trial court regarding consideration of the excerpts from her deposition which were attached to the defendants’ motion for summary judgment and supporting memorandum, she was entitled to expect the superior court to correctly apply the law and recognize that the deposition excerpt was not certified or properly filed so as to be considered as evidence. Furthermore, a review of a grant of summary judgment is de novo and thus without regard to the view of the case taken by the superior court. Dixie Diners Atlanta v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364, 366 (1) (439 SE2d 53); Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832). This court should recognize that the uncertified deposition excerpts were not proper evidence. Therefore, I respectfully dissent.

       Plaintiff herself also relied on the excerpt from her deposition, in her response to defendants’ motion for summary judgment.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1542.
    DALTON v. THE STATE.
    (454 SE2d 554)
    Decided February 6, 1995
    Reconsideration denied February 27, 1995

      Winship E. Rees, for appellant.

      Jerry Rylee, Solicitor, Inez G. D’Entremont, Assistant Solicitor, for appellee.

      Michael J. Bowers, Attorney General, Robert S. Bomar, Isaac

      Byrd, Senior Assistant Attorneys General, amici curiae.
   Birdsong, Presiding Judge.

Jerry Wayne Dalton appeals his conviction for boating under the influence of alcohol. He contends his boat was unlawfully stopped on Lake Lanier because the evidence showed the Department of Natural Resources’ rangers randomly stopped his boat without probable cause or reasonable suspicion that he had committed an offense. Held:

The record shows that the rangers stopped the boat to conduct a safety inspection and only thereafter suspected that Dalton was under the influence. Dalton was then administered a breath test and two hours after he was stopped his blood-alcohol content was .11 grams percent.

Dalton asserts that the rangers stopped his boat without probable cause to conduct an inspection under OCGA § 52-7-25 (a): “Any person empowered to enforce this article and any rule or regulation adopted pursuant hereto shall have the authority to stop and board any vessel subject to this article or any such regulation for the purpose of inspection or determining compliance with this article.” Dalton contends that randomly stopping boats under this article was unconstitutional because police cannot randomly stop and inspect automobiles under Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660).

As Dalton challenged the constitutionality of OCGA § 52-7-25 (a), this court transferred the appeal to the Supreme Court. The Supreme Court, however, returned the Appeal to this Court. As the Supreme Court returned this case to this Court, there is no constitutional issue for resolution. “The transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.” Krause v. Vance, 207 Ga. App. 615, 622 (428 SE2d 595).

Therefore, the only issue for resolution by this Court is whether the stop was lawful. As the evidence shows the stop of Dalton’s boat was authorized by OCGA § 52-7-25 (a), the trial court correctly denied Dalton’s motion to suppress.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1950.
    V. I. P. HOMES, INC. et al. v. WEADER et al.
    (454 SE2d 548)
   Birdsong, Presiding Judge.

V. I. P. Homes, Inc., and Mahlon Jay Hyatt appeal a judgment on a jury verdict in favor of Gene E. Weader and Donna I. Weader. Appellees’ action was based upon fraud connected with the ownership of a mobile home which appellants sold them.

The record shows that after appellees filed suit, appellant Hyatt filed a Chapter 7 bankruptcy. Appellees then filed an adversary proceeding against Hyatt seeking a determination that Hyatt’s actions were fraudulent and asking the bankruptcy court to render a verdict for actual and punitive damages. The bankruptcy court, however, did not award this relief. Instead, the bankruptcy court denied discharge to Hyatt and dismissed appellees’ counterclaim because it was stipulated as moot.

When appellants did not appear for trial, the trial court entered judgment in favor of appellees. Thereafter, appellants moved to set aside this judgment alleging that they did not receive timely notice of the trial date and also asserting res judicata because the bankruptcy failed to award the appellees the damages they sought. The trial court denied the motion to set aside on res judicata grounds because it found that the bankruptcy court did not adjudicate the issues raised in the present action, but the trial court still set aside the judgment because appellants were not notified of the trial date.

Thereafter, a jury trial was held and the jury returned a verdict in favor of appellees. Held:

1. The trial court did not err by denying appellants’ motion based on res judicata. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until the judgment is reversed or set aside.” OCGA § 9-12-40. Although appellees’ claims were originally put in issue in the bankruptcy court, pursuant to the stipulation of the parties they were dismissed as moot when the bankruptcy court denied discharge to Hyatt. As a result, the bankruptcy court did not consider the merits of these claims, but instead, dismissed the claims on a procedural basis before appellees had the full opportunity to litigate their claim on the merits. “For a prior action to bar a subsequent action under the doctrine of res judicata, several requirements must be met: The first action must have involved an adjudication by a court of competent jurisdiction; the two actions must have an identity of parties and subject matter; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.” (Citations omitted.) Fowler v. Vineyard, 261 Ga. 454, 455-456 (405 SE2d 678). Because appellees did not have a full and fair opportunity to litigate their claim, res judicata did not apply. Moreover, even if res judicata would have applied, it would not have extended to V. I. P. Homes, Inc., as the bankruptcy action concerned only Hyatt. Accordingly, the trial court did not err by denying appellants’ motion to dismiss.

2. The second enumeration of error contends the trial court erred, as a matter of law, by failing to grant appellants’ motion for a directed verdict at the conclusion of appellees’ case. The transcript shows appellants’ motion for directed verdict asserted lack of detrimental reliance by appellees because they failed to make a written request for a statement of title on the mobile home under OCGA § 40-3-57.

When determining whether a trial court erred by denying appellants’ motion for a directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. “A directed verdict ... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted.) Southern Store &c. Equip. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Further, after a jury verdict is approved by the trial court, the judgment, which is supported by the evidence, will not be disturbed on appeal unless there is a material error of law. Smith v. Clifford H. Pryor &c., 193 Ga. App. 523, 524 (388 SE2d 383); Archer Motor Co. v. Intl. Bus. Invest., 193 Ga. App. 86, 88 (386 SE2d 918). In this instance appellees maintained that they were unaware that Hyatt, as owner, and V. I. P. Homes, as lienholder, were not the only parties with interest in the mobile home, and therefore a question of fact exists on whether they even knew that another party might be involved. Moreover, “[questions of fraud, the truth and materiality of representations made by a seller, and whether the buyer [s] could have protected [themselves] by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” (Citation and punctuation omitted.) del Mazo v. Sanchez, 186 Ga. App. 120, 127-128 (366 SE2d 333). Further, whether the facts and circumstances established actionable fraud is itself within the province of the jury. Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 513 (376 SE2d 393). Therefore, a jury question was presented.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided February 6, 1995

Reconsideration denied February 27, 1995.

Powell & Tante, Joseph W. Powell II, for appellants.

William J. Mason, for appellees.


text:
    A94A2680.
    CLAIR v. THE STATE.
    (454 SE2d 556)
   Birdsong, Presiding Judge.

Brian L. Clair appeals his convictions of DUI and speeding. He contends the trial court erred by denying his motion for new trial because his trial defense counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), and because the ruling “was based in part on errors of law concerning issues determined by the trial court.” Held:

1. It was Clair’s burden to establish that his trial defense counsel’s performance was deficient and that the deficient performance prejudiced his defense (Brown v. State, 257 Ga. 277, 278 (357 SE2d 590)) because there was a reasonable probability that the result of his trial would have been different but for his defense counsel’s unprofessional deficiencies. Baggett v. State, 257 Ga. 735 (363 SE2d 257). Further, Clair was required to overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485).

Clair’s primary argument rests on the trial defense counsel’s failure to move to exclude the results of the blood/alcohol test as well as his failure to call an expert witness to challenge the test results. Pretermitting the merits of these arguments, however, the record shows Clair did not request an evidentiary hearing on his motion. A challenge to defense counsel’s effectiveness must be made at the earliest possible moment and must be accompanied by a request for an evidentiary hearing on the issue. Dawson v. State, 258 Ga. 380, 381 (369 SE2d 897); Thompson v. State, 257 Ga. 386 (359 SE2d 664). As Clair did not request an evidentiary hearing on this issue, his claim is waived. Ray v. State, 259 Ga. 868, 870 (389 SE2d 326); Dawson v. State, supra.

Moreover, even if we were to consider the merits of Clair’s claim we would not afford him the relief he seeks. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.) Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62). Here, the trial court found that Clair’s claims, based on the premise that counsel failed to call an expert witness and failed to make a motion to suppress, must fail because he had not overcome the presumption that the trial defense counsel’s performance was effective and that trial defense counsel’s actions were the result of counsel’s strategic decision. Since Clair presented no evidence to the contrary, the trial court’s findings were not clearly erroneous. Further, “[i]n the absence of testimony to the contrary, counsel’s actions are presumed strategic. [Cit.]” Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188).

Decided February 7, 1995

Reconsideration denied February 27, 1995

William C. Head, for appellant.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Cindi Yeager, Mark A. Basurto, Assistant Solicitors, for appellee.

2. Clair’s contention that the trial court erred by making some unspecified legal ruling cannot be considered because it is too general to support a claim of error. Pepper v. Pepper, 169 Ga. 832, 833 (152 SE 103); Johnson v. State, 212 Ga. App. 190 (441 SE2d 508) (physical precedent only); Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647). We note that the trial court refused to consider these unspecified allegations of error for the same reason.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Ruffin, Judge.

text:
    A94A2171.
    SMITH v. THE STATE.
    (454 SE2d 615)
   Ruffin, Judge.

Appellant, Kerry Smith, was convicted of entering an automobile with intent to commit a theft and robbery by sudden snatching. The evidence showed that the robbery victim, Betty Strickland, stopped at a store to buy a newspaper from a newspaper box outside the store. Strickland testified that she parked her car approximately ten feet away from the box, and as she was returning to her car she saw a man headed toward the vehicle. The man then opened the car door, took Strickland’s blue and red tote bag and ran off. The next day, Strickland identified Smith in a photographic lineup.

1. Smith contends that the evidence identifying him as the perpetrator of the crimes was insufficient to support his convictions. In particular, Smith argues that Strickland’s identification of him was “suspect” because of discrepancies in the two descriptions of him she gave to the police and because the photographic lineup was “suggestive.” We disagree. Strickland testified that she was approximately seven to eight feet away from the man who entered her car and got a good look at him for several seconds. Strickland chased Smith but was unable to catch him. The next day, Strickland identified Smith as the perpetrator in a photographic lineup. In addition, another witness, Walter Harvey, testified that he had known Smith all his life and was at the store on the morning of the incident. When Harvey came out of the store, he saw Strickland chasing Smith. Harvey testified that Smith was carrying a red and blue tote bag. Harvey later reported the incident to the police and identified Smith in a photographic lineup.

We find that the identification evidence was ample and clearly sufficient for a rational trier of fact to find Smith guilty of the two offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Any arguments about discrepancies in the victim’s description of Smith or the “suspect” photographic lineup “relate entirely to matters within the exclusive province of a jury. Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration.” (Citations and punctuation omitted.) Foster v. State, 203 Ga. App. 328, 330 (416 SE2d 855) (1992).

2. Smith contends that the offenses of robbery by sudden snatching and entering an automobile with intent to commit a theft merged and that the “more proper charge is that of entering an auto.” The trial court found that the two offenses merged, and accordingly, sentenced Smith only for the greater offense of robbery by sudden snatching. Pretermitting the self-evident questions of whether entering the automobile was the lesser offense under OCGA §§ 16-1-6 and 16-1-7 which merged into the greater offense of robbery and whether sentencing for the robbery conviction was therefore appropriate, we note that Smith failed to object in any way to his sentencing on the robbery charge. The only comment his attorney made with respect to the two charges and the only part of the transcript cited in this enumeration of error was Smith’s motion for directed verdict on the robbery by sudden snatching charge. Thus, Smith preserved nothing for appellate review with respect to his sentencing. See Watkins v. State, 206 Ga. App. 701 (3), (4) (426 SE2d 238) (1992).

3. Smith contends that he received ineffective assistance of counsel in a number of ways. This allegation was raised at Smith’s motion for a new trial and the record contains a 40-page transcript on the issue in which Smith’s trial counsel was thoroughly questioned regarding her actions and strategy during the trial. The trial court subsequently found that Smith’s ineffective assistance allegation lacked merit. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citation and punctuation omitted.) Stevens v. State, 210 Ga. App. 355, 357 (6) (436 SE2d 82) (1993). We have reviewed the transcript from the motion for new trial and do not find that the trial court’s ruling was clearly erroneous.

Decided February 27, 1995.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A94A2288, A94A2289.
    WIELAND v. WIELAND (two cases).
    (454 SE2d 613)
   Smith, Judge.

This is the second appearance of this domestic relations litigation before this court. In Wieland v. Wieland, 202 Ga. App. 222 (414 SE2d 247) (1991) (Wieland I), Louis Wieland appealed from an order finding him in contempt of a child custody order and a second order denying his motion to recuse the trial judge. Because he failed to file an application for appeal as required by OCGA § 5-6-35, this court was without jurisdiction to consider either appeal, and both appeals were dismissed. 202 Ga. App. at 223.

In Case No. A94A2288, Louis Wieland once again appeals from an order of the trial court finding him in contempt. In Case No. A94A2289, he appeals from a supplemental order denying his motion regarding venue. Appellee Linda Wieland filed motions to dismiss both appeals, and in Case No. A94A2288 sought damages under OCGA § 5-6-6, contending the appeal was filed for purposes of delay only.

1. Case No. A94A2288 is controlled by the provisions of OCGA § 5-6-35 and Wieland I. As noted in that case, an appeal from a judgment or order “holding . . . persons in contempt of . . . [alimony or] child custody judgment or orders” must be made by application. 202 Ga. App. at 223 (1). Louis Wieland’s reliance on Martin v. Schindley, 210 Ga. App. 270 (435 SE2d 716) (1993), reversed, 264 Ga. 142 (442 SE2d 239) (1994), is misplaced. That decision involved the trial court’s dismissal of an action to partition property, not a citation for contempt. Louis Wieland has failed to file the required application for appeal. This court is without jurisdiction to consider the appeal, and it is therefore dismissed.

2. Case No. A94A2289 arose from the trial court’s order denying Louis Wieland’s “Plea to the Jurisdiction, Motion to Dismiss and Motion to Transfer Venue.” This order apparently was entered in response to Louis Wieland’s motion for reconsideration of the contempt order. As a supplement to the trial court’s original order holding Wieland in contempt, the order is sufficiently related to the trial court’s contempt order to require an application under OCGA § 5-6-35 (a) (2). See C & S Nat. Bank v. Rayle, 246 Ga. 727, 730 (4) (273 SE2d 139) (1980). Moreover, as an interlocutory order it is not appealable without a certificate of immediate review and application pursuant to OCGA § 5-6-34 (b). This appeal is therefore dismissed. See Wieland I, 202 Ga. App. at 223 (2).

Decided February 27, 1995.

Turner, Turner & Turner, Nelson G. Turner, for appellant.

3. These appeals present a case in which no apparent justification for appeal exists other than delay. The issues are identical to those raised in Wieland I, and the result is the same. Louis Wieland was represented by the same counsel in Wieland I and in this action. In both notices of appeal, he stated: “The appellant also shows that it has and will file applications for appeal as well as direct appeals to protect the appellate rights of the appellant.” Despite this assurance, no applications were filed.

Although it is apparent that Louis Wieland was well aware of the lack of merit of these appeals, we are unable to assess damages under OCGA § 5-6-6. That Code section provides for damages in an appropriate case where a judgment for a sum certain is affirmed. However, “[i]t does not expressly authorize these damages when an appeal is dismissed. The extent of the authority is plain, giving ordinary signification to the words. OCGA § 1-3-1 (b). We cannot supply additional words. Nor can we construe plain and unequivocal words.” Radford v. IPD Printing &c., 184 Ga. App. 64 (360 SE2d 656) (1987). See also Scott v. McLaughlin, 192 Ga. App. 230 (384 SE2d 212) (1989) (“We are constrained to deny the motion ... as the statute authorizes the penalty only when the judgment is affirmed, not when the appeal is dismissed.”)

We are authorized, however, by Rule 26 (b) of this court to assess a penalty for frivolous appeals. We therefore assess frivolous appeal penalties against Louis Wieland in the amounts of $250 in Case No. A94A2288 and $250 in Case No. A94A2289. The trial court is directed to enter judgment in such amount upon return of the remittitur in this case.

Appeals dismissed.

McMurray, P. J., and Pope, P. J., concur.

Robert G. Wellon, for appellee.

       Rule 15 (b) of the revised rules of this court will apply to those cases docketed on or after January 3, 1995.


text:
    A94A2623.
    ALLSTATE INSURANCE COMPANY v. GRAYES et al.
    (454 SE2d 616)
   Birdsong, Presiding Judge.

This interlocutory appeal was granted to review the trial court’s denial of Allstate Insurance Company’s motion for summary judgment in Allstate’s action seeking a judicial declaration of its obligations under a homeowner’s insurance policy it issued to Ulysses Middleton and Valencia Middleton. This litigation arises from a continuing dispute between the Middletons and their neighbors, Willie Grayes and Dolores Grayes, that ended when Ulysses Middleton shot both Willie and Dolores Grayes with a shotgun. Mrs. Middleton was not present at the time of the shooting. The Grayeses filed suit against the Middletons alleging that Mr. Middleton was liable because he intentionally and without provocation shot the Grayeses and that Mrs. Middleton was liable because she provoked the series of incidents that ultimately led to the shootings.

After the Grayeses sued the Middletons and the Middletons claimed coverage under their Allstate homeowner’s policy, Allstate filed a petition seeking a declaratory judgment. Subsequently, Allstate moved for summary judgment contending there was no coverage because the policy covered only damages for bodily injury arising from accidents and because the policy’s exclusions for intentional acts and criminal conduct precluded coverage under the policy. Allstate asserted that there was no coverage for Mr. Middleton because the Grayeses’ injuries were caused by Mr. Middleton’s intentional, criminal conduct and there was no coverage for Mrs. Middleton because her actions did not cause bodily injury to the Grayeses.

The Grayeses’ response to the motion asserted that a policy endorsement modified the policy’s criminal acts exclusion so that the exclusion did not apply if the bodily injury resulted from wilful acts or omissions committed by an insured or with the knowledge or consent of an insured, which were crimes under the Georgia Criminal Code, but the acts or omissions were for the preservation of life or property. Consequently, the Grayeses amended their complaint to allege that Mr. Middleton negligently shot the Grayeses in self-defense because he shot them without ascertaining whether he was really in danger. The Grayeses also submitted Mr. Middleton’s affidavit stating that he shot the Grayeses in self-defense.

Because of the amendment to the endorsement, Allstate withdrew its reliance on both policy exclusions. As to Mr. Middleton, Allstate based its motion for summary judgment solely on its contention that there was no coverage because the shootings were not accidental and the policy covered only damages arising from accidents.

The trial court denied Allstate’s motion because it found that “the question is whether [Mr. Middleton] acted accidentally, negligently, recklessly, intentionally, etc. in an effort to preserve life or property. Because coverage depends on a factual finding that Mr. Middleton’s conduct fit within the endorsement providing coverage for protection of life or property, the issue cannot be determined as a matter of law.” Thus, the trial court found jury issues existed on whether Mr. Middleton’s conduct satisfied the preservation of life or property exception to the criminal acts exclusion. As to Mrs. Middleton, the trial court found there were issues of fact concerning coverage for her because she was intimately involved in the incidents that ultimately resulted in the Grayeses’ injuries.

Allstate contends the trial court erred because the criminal acts or omissions exception applied only if there was bodily injury caused by Mr. Middleton that arose from an accident, and here the evidence showed there was no accident. Allstate also contends that the trial court erred by denying its motion regarding coverage for Mrs. Middleton because there was no evidence that her actions resulted in bodily injury to the Grayeses. Held:

1. Although the questions the lower court found significant might ultimately become relevant in certain cases, a court’s first obligation in cases such as this is to construe the insurance policy to determine the scope of the policy and any exclusion at issue. OCGA § 13-2-1. If any question of fact is then relevant, the jury must decide those issues. Id.

Further, before addressing whether the terms of some exclusion might be applicable, the initial consideration is whether the policy covered the incident in which the Grayeses suffered their injuries. Penn. Millers Mut. Ins. Co. v. Heule, 140 Ga. App. 851, 852 (232 SE2d 267); Showers v. Allstate Ins. Co., 136 Ga. App. 792 (222 SE2d 198); Ga. Farm Bureau Mut. Ins. Co. u. Alloway, 134 Ga. App. 660, 661 (215 SE2d 506). To establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured against. See Donaldson v. Pilot Life Ins. Co., 177 Ga. App. 748, 749 (341 SE2d 279); Fidelity &c. Co. of Md. v. Sun Life Ins. Co., 174 Ga. App. 258, 260 (329 SE2d 517).

The provision establishing the coverage of this policy states: “Losses we cover: Subject to the terms, limitations and conditions of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy.” The policy defines “bodily injury” as “physical harm to the body, including sickness and disease, and resulting death.” Although the policy does not define the term “accident,” in Georgia an accident is defined as “an event which takes place without one’s foresight or expectation or design.” OCGA § 1-3-3 (2). “An accident refers to an unexpected happening rather than one occurring through intention or design. Acts could not be unexpected unless they were accidental.” (Citation and punctuation omitted.) Southern Guaranty Ins. Co. v. Saxon, 190 Ga. App. 652, 653 (379 SE2d 577). The policy’s exclusion of coverage for bodily injury resulting from an act or omission intended or expected to cause bodily injury (Section II, Losses we do not cover: No. 1 (a)) is consistent with these definitions. Consequently, the first consideration must be whether the bodily injuries the Grayeses sustained were the result of an accident.

The evidence concerning the incident from which the Grayeses’ injuries arose is not in dispute. After a series of increasingly hostile incidents between the Middletons and Grayeses, Mr. Middleton shot Mr. Grayes. Then, when Mr. Middleton saw Mrs. Grayes standing on her porch with a shotgun, he also shot her. Although Mr. Middleton states that he only shot the Grayeses in self-defense because he thought they were going to shoot him, there is no dispute but that he shot both Grayeses intentionally; Middleton intended to shoot the gun and hit those whom he intended to shoot. See Stein v. Mass. Bay Ins. Co., 172 Ga. App. 811, 812 (324 SE2d 510). Under the circumstances, the shootings were not events which took place without Mr. Middleton’s foresight or expectation or design. See OCGA § 1-3-3 (2). Consequently, the injuries suffered by the Grayeses were not the result of accidents, and hence were not losses that would be paid under the policy.

Since the shootings were not covered by the policy in the first instance, whether the preservation of life or property exception to the wilful exclusion in the endorsement to the policy has no legal significance. See Winters v. Reliance Standard Life Ins. Co., 209 Ga. App. 369, 370 (433 SE2d 363): “The policy language at issue, insuring against losses resulting from ‘bodily injury caused by accident,’ insures against unforeseen injuries caused by ‘accidental means.’ ” As the bodily injuries suffered by the Grayeses did not arise from an accident, there was no coverage under the policy. Therefore, the trial court erred by denying Allstate’s motion for summary judgment.

2. The trial court also erred by denying Allstate’s motion concerning Mrs. Middleton. Since it is manifest that no act of Mrs. Middleton caused any bodily injury to the Grayeses, the policy of insurance provides no coverage for this incident. Further, the affidavit submitted by the Grayeses by Mr. Middleton which states that he shot the Grayeses in self-defense negates any possibility that Mrs. Middleton had anything to do with this incident.

3. Although the Grayeses contend that the exception to the criminal acts exclusion somehow extends coverage to the Grayeses’ injuries or creates an ambiguity that must be resolved in their favor, we find no support for that contention. Nothing in the revised exclusion indicates that the exception, which would allow coverage for bodily injuries arising from certain criminal acts, was intended to extend coverage to injuries that resulted from intentional acts. In this regard, a similar exception was not added to the policy’s intentional acts exclusion, and, as a consequence, bodily injury resulting from intentional acts would be excluded from coverage regardless of whether the act was a crime under the Georgia criminal code and regardless of whether the intentional act was for the preservation of life or property. See Stein v. Mass. Bay Ins. Co., supra at 813-814. Consequently, the scope of this exception is to allow coverage for unexpected or unintended bodily injury or property damage resulting from wilful acts or omissions that are crimes under the Georgia criminal code, but were for the preservation of life or property. Since the bodily injuries suffered by the Grayeses were not unintended or unexpected, the exception to the criminal acts exclusion is of no assistance to their case.

Moreover, we find no ambiguity between the exception to the criminal acts exclusion and the intentional acts exclusion or the provision that defines the coverage of the policy. An ambiguity is “ ‘duplicity, indistinctness, an uncertainty of meaning or expression’ ” (Tarbutton v. Duggan, 45 Ga. App. 31 (5) (163 SE 298)), and a word or phrase is ambiguous when “ ‘ “it is of uncertain meaning and may be fairly understood in more ways than one.” ’ ” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (381 SE2d 322). As the words in this policy are plain and obvious, however, they must be given their literal meaning (United States Fire Ins. Co. v. Capital Ford Truck Sales, 257 Ga. 77, 79 (355 SE2d 428)), and, after considering the policy’s language, it is obvious that there is no ambiguity even when all the provisions are considered together.

Although ambiguous policy provisions must be construed liberally in favor of the insured and strictly construed against the insurer, this cannot be done when the policy is clear and unequivocal. United Sucs. Auto. Assn. v. Lail, 192 Ga. App. 487, 489 (385 SE2d 424). “When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties. [Cit.] Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.” Burnette v. Ga. Life &c. Ins. Co., 190 Ga. App. 485 (379 SE2d 188).

Therefore, the judgment is reversed and the case remanded with direction for the trial court to enter judgment for Allstate.

Decided February 27, 1995

Karsman, Brooks & Callaway, R. Kran Riddle, for appellant.

Clarence L. Martin, Jackson & Schiavone, G. Terry Jackson, for appellees.

Judgment reversed with direction.

Blackburn and Ruffin, JJ., concur.


author: Pope, Presiding Judge.

text:
    A94A2644.
    STEVENS v. THE STATE.
    (454 SE2d 620)
    Decided February 27, 1995.

      James S. Purvis, for appellant.

      Lewis R. Slaton, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.
   Pope, Presiding Judge.

Defendant was convicted of kidnapping and robbery. He appeals the denial of his motion for new trial, raising the general grounds.

The victim testified that defendant approached and verbally harassed her; that he followed her despite her statements that she did not want company; that he told her he had a gun, entered the victim’s car, and forced her to drive to a dark street; and that she was able to escape from him there, leaving the car. The police found the car at a rest stop in Mississippi 19 days later, with defendant sleeping in the driver’s seat.

Viewed in a light most favorable to the verdicts, this evidence is sufficient to enable rational jurors to find defendant guilty of kidnapping and robbery beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A1904.
    W. R. GRACE & CO.-CONN. et al. v. TACO TICO ACQUISITION CORPORATION et al.
    (454 SE2d 789)
   Birdsong, Presiding Judge.

W. R. Grace & Co.-Conn. (“Grace”) and Del Taco Restaurants, Inc. (collectively “Del Taco”), appeal a judgment, based upon a jury verdict, in favor of Taco Tico Acquisition Corporation, Taco Tico, Inc., George W. Baker, Sr., and R. Gene Smith (collectively “Taco Tico”).

The parties operated fast-food Mexican restaurants, Del Taco primarily in the Southeastern United States and Taco Tico primarily in the Midwest and Western United States. In 1990, Taco Tico initiated negotiations directed toward the acquisition of Del Taco. In early and mid-1990’s, Taco Tico made various unsuccessful proposals, with differing funding concepts, to acquire the shares of Del Taco owned by Grace and all the publicly held shares of the corporation until finally, in August 1990, the parties executed a non-binding letter of intent that set forth the terms proposed for Taco Tico’s acquisition of Del Taco. In significant part, the letter provided that Taco Tico would lease Del Taco’s properties for 15 years for $3.5 million annually with an option to purchase at the end of the lease, that Grace would acquire the publicly held shares of Del Taco, and that Taco Tico would pay Grace with a $5.4 million promissory note. Additionally, as collateral for Taco Tico’s lease and note payments, Grace would receive a security interest in Taco Tico’s properties and warrants to purchase a controlling interest in the new company that would exist after the acquisition. The letter also provided that the agreement would remain contingent on the right of the parties to conduct further investigation of the financial condition of the other. The letter stated that the agreement was in principle only and that neither party would be obligated to complete the transaction until a final agreement was executed by the parties. More significantly, the letter stated: “Notwithstanding the foregoing ... or any other past, present or future written or oral indications of assent or indications of results of negotiation or agreement to some or all matters then under negotiation, it is agreed that no party to the proposed transaction (and no person or entity related to any such party) will be under any legal obligation with respect to the proposed transaction or any similar transaction, and no offer, commitment, estoppel, undertaking or obligation of any nature whatsoever shall be implied in fact, law or equity, unless and until a formal agreement providing for the transaction containing in detailed legal form terms, conditions, representations and warranties (secured by an appropriate escrow) has been executed and delivered by all parties intended to be bound. This paragraph sets forth the entire understanding and agreement of the parties (and all related persons and entities) with regard to the subject matter of this paragraph and supersedes all prior and contemporaneous agreements, arrangements and understandings related thereto. This paragraph may be amended, modified, superseded or cancelled only by a written instrument which specifically states that it amends this paragraph, executed by an authorized officer of each entity to be bound thereby.”

On the same date the parties executed a management services agreement through which Taco Tico agreed to manage the operations of Del Taco and Taco Tico while the parties attempted to complete the acquisition. This agreement provided that Taco Tico would be paid only $10 per month for these management services. Thereafter, Taco Tico began managing Del Taco and Taco Tico.

Changes in economic conditions, however, apparently necessitated alterations in Taco Tico’s operations and general financial conditions. As a result, Taco Tico did not attempt to complete the transaction in accordance with the letter of intent, but, instead made proposals concerning Del Taco’s continued operation which differed from the terms provided in the letter of intent. Ultimately, Taco Tico was advised that the proposed acquisition would not take place, and the management agreement was terminated.

Subsequently, Taco Tico sued Del Taco asserting claims for fraud and rescission of the agreement, breach of fiduciary duty, violation of the Georgia Securities Act, promissory estoppel (because of representations that the acquisition would be completed), and quantum meruit for services rendered in managing Del Taco. After the trial court granted summary judgment to Del Taco on the claims for breach of fiduciary duty and violation of the Georgia Securities Act, the case proceeded to trial on the remaining claims. Ultimately, the jury found in favor of Del Taco on the claims for fraud and rescission, but awarded damages to Taco Tico on its claims of promissory estoppel and quantum meruit. The jury also found for Taco Tico on Del Taco’s counterclaim.

Del Taco contends the trial court erred by denying its motion for a directed verdict on the promissory estoppel claim because the language of the agreement between the parties specifically disclaimed reliance on future representations by either party concerning their intention to consummate the proposed deal. Del Taco further contends the jury’s award of damages for quantum meruit cannot be reconciled with the jury’s verdict on the fraud and rescission claims and the explicit contractual provision limiting Taco Tico’s management fee to $10 a month. Taco Tico has not appealed the verdict which was adverse to its interests or the earlier grant of summary judgment. Held:

In reviewing the trial court’s denial of Del Taco’s motion for a directed verdict, this court reviews and resolves the evidence and any doubt or ambiguity in favor of the verdict, and a directed verdict is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict. Southern Store &c. Equip. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268).

1. Del Taco’s motion for a directed verdict on Taco Tico’s claim for promissory estoppel was based upon Taco Tico’s inability to show, as a matter of law, that it reasonably relied on any representations by Del Taco that the acquisition would be completed because the letter of intent disclaimed any reliance on such representations. Under the doctrine of promissory estoppel a “promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a). See Nickell v. IAG Fed. Credit Union, 213 Ga. App. 516, 519 (445 SE2d 335). Thus, if Taco Tico could not reasonably rely on any representations made by Del Taco, promissory estoppel would not apply. Fidelity &c. Co. of Maryland v. West Point Constr. Co., 178 Ga. App. 578, 580 (344 SE2d 268).

Because the letter of intent signed by Taco Tico specifically states that neither party may rely on any representations made by the other party regarding whether the transaction would be consummated, we find that, as a matter of law, Taco Tico could not rely reasonably upon any alleged representations by Del Taco. See Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790 (359 SE2d 920). This court has consistently held that disclaimers in contracts prevent justifiable reliance on other representations purportedly made by the parties. See, e.g., Copeland v. Home Savings of America, 209 Ga. App. 173 (433 SE2d 327); we perceive no difference between reasonable reliance in promissory estoppel cases and justifiable reliance in other cases sufficient to warrant a different result. Therefore, the evidence presented demanded a verdict for Del Taco on these claims, and the trial court erred by denying Del Taco’s motion for a directed verdict. As the cases cited by Taco Tico do not concern disclaimers that applied to both future and past promises, they are not persuasive.

In this appeal, both parties to the negotiations were experienced, successful businessmen who were advised by capable attorneys. Therefore, it cannot be reasonably maintained that they did not comprehend the terms of the letter of intent that they signed or that they did not understand the possibility that the transaction would not be completed. Under these circumstances, Taco Tico cannot avoid the responsibility for its actions taken in preparation for the acquisition of Del Taco based on the assumption that the transaction would be completed. Moreover, the record shows that Taco Tico did not attempt to consummate the transaction based on the terms outlined in the letter of intent.

2. Because of the jury verdict for Del Taco on the claims for fraud and rescission, Taco Tico is bound by the express terms of the contract establishing the payment for the management services provided to Del Taco. Accordingly, we find that the trial court also erred by denying Del Taco’s motion for a directed verdict on Taco Tico’s claim for quantum meruit because the services for which quantum meruit were claimed were provided under an express contract. Life Care Ambulance v. Hosp. Auth. of Gwinnett County, 202 Ga. App. 864, 867 (415 SE2d 502). Under our law, “there can be no recovery in quantum meruit where an express contract governs all the claimed rights and responsibilities of the parties.” Lord Jeff Knitting Co. v. Lacy, 195 Ga. App. 287, 288 (393 SE2d 55).

Decided February 3, 1995

Reconsideration denied February 28, 1995

Paul, Hastings, Janofsky & Walker, John G. Parker, Ronald T. Coleman, Jr., Melinda L. Moseley, for appellants.

Alston & Bird, Peter M. Degnan, Mary C. Gill, Cynthia L. Counts, for appellees.

The denial of appellants’ motions for directed verdict must be reversed and the case remanded to the trial court with direction to enter a directed verdict for appellants on these claims.

Judgment reversed with direction.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1976.
    ANDREW v. THE STATE.
    (454 SE2d 542)
   Birdsong, Presiding Judge.

Thomas William Andrew III, appeals his conviction for the child molestation of his daughter. Although the indictment alleged that he molested his daughter with the intent to arouse and satisfy his sexual desires, Andrew contends the evidence at trial was insufficient for the jury to find him guilty of child molestation beyond a reasonable doubt because there was no evidence that he molested his daughter with the intent to arouse and satisfy his own sexual desires and no evidence of his sexual arousal. Held:

“A person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). Although sexual gratification is an element of the crime (Staggers v. State, 120 Ga. App. 875, 877 (172 SE2d 462)), in Hathcock v. State, 214 Ga. App. 188, 190 (447 SE2d 104), this court held that it could be inferred from the fact that the defendant exposed himself to a child that he had the intent to arouse or satisfy his sexual desires. We find that holding applicable to this appeal. “ ‘Intent ... is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. OCGA § 16-2-6.’ (Citation and punctuation omitted.) Worley v. State, 193 Ga. App. 58, 60 (3) (386 SE2d 879) (1989).” Id. Considering Andrew’s conduct as shown by the acts testified to by his daughter, and especially her testimony that Andrew tickled her vagina and on more than one occasion when she was in bed at night Andrew pressed a hard, oval shaped object that was long like a pen against her vagina, we are satisfied that this evidence was sufficient of his intent to gratify his sexual desire to allow rational finders of fact to find Andrew guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided February 1, 1995

Reconsideration denied February 28, 1995.

Robert K. Ballew, David M. Rosenberg, William B. Herndon, for appellant.

Thomas W. Andrew III, pro se.

Lewis R. Slaton, District Attorney, Jamie L. Mack, Carole E. ■ Wall, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2002.
    COLUMNS PROPERTIES, INC. v. COLEMAN et al.
    (454 SE2d 546)
   Birdsong, Presiding Judge.

Catherine Coleman sued Columns Properties, Inc., for damages based on injuries she sustained in a fall at a Columns Properties construction site. Coleman’s husband, Dennis Coleman, also sued for loss of consortium. Columns Properties moved for summary judgment, and when the trial court denied the motion, this court granted an interlocutory appeal.

Dennis Coleman is a construction supervisor for Columns Properties. Catherine Coleman was employed as an independent contractor to clean houses for Columns Properties under her husband’s supervision. Nevertheless, Catherine Coleman’s contract with Columns Properties provided for workers’ compensation coverage.

After her fall and injury while leaving her husband’s office trailer on a job site, Coleman first filed a workers’ compensation claim. Her workers’ compensation claim was denied because she failed to meet her burden of “showing that her fall both arose out of and in the course of her employment” with Columns Properties, and that decision was affirmed by a superior court. The Colemans then filed this action, alleging that Catherine Coleman was injured while at the job site “at the invitation and permission” of Columns Properties to pick up her paycheck. The record shows that Catherine Coleman had visited her husband’s trailer on several occasions and used the same entrance each time. Before entering this door, she had to use a metal step that was attached to the trailer by its manufacturer. The step had no railings. Although the step was wet and muddy because it had rained that day, Catherine Coleman safely entered the trailer. When she started to leave, however, she put her foot on the step without looking and then slipped and fell. At a deposition given as part of her workers’ compensation claim, Catherine Coleman testified she did not know what caused her to slip and fall. Held:

1. The critical issue is Catherine Coleman’s legal status at the time of her injury. Columns Properties asserts that as the State Workers’ Compensation Board found she was not within the scope of her employment when she was injured, she must have been on the premises for her own purposes, and thus her status on the premises was not as an invitee, but as a licensee. Thus, under the standard of care owed licensees, Columns Properties contends it is not legally responsible for Coleman’s injuries because the only duty owed her was not to cause her injury wilfully or wantonly (Sims v. Willoughby, 179 Ga. App. 2, 3 (345 SE2d 626)), or knowingly permit her to run upon a hidden peril on the premises. Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331). Further, Columns Properties asserts that res judicata prevents the Colemans from re-litigating the issues decided in the workers’ compensation award.

Since under Continental Baking Co. v. Brock, 198 Ga. App. 578, 579 (402 SE2d 331), res judicata and estoppel by judgment apply to workers’ compensation awards on all questions of fact in matters in which the board had jurisdiction, Catherine Coleman cannot re-litigate the scope of employment issue in this litigation. McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (341 SE2d 294). Therefore, her status as an invitee would be dependent upon her presence as a contractor/employee, and the effect of the workers’ compensation award is that she was present as either a licensee or trespasser. Because there is no evidence that Columns Properties wilfully or wantonly injured her or knowingly allowed her to be injured by a hidden peril, summary judgment was improperly denied. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Further, although Dennis Coleman was not bound by the workers’ compensation award, his claim is derivative of Catherine Coleman’s claims; if her claim fails, his claim fails. Hall v. Gardens Services, 174 Ga. App. 856, 858 (332 SE2d 3); Groover v. Dickey, 173 Ga. App. 73, 74 (325 SE2d 617).

Decided February 6, 1995

Reconsideration denied February 28, 1995

Neal C. Scott, Mary P. Vilmos, for appellant.

Sherwinter & McElroy, Emily Sherwinter, J. Glenn McElroy, for appellees.

Accordingly, the trial court erred by denying Columns Properties’ motion for summary judgment. The judgment is reversed and the case remanded to the trial court with direction to enter judgment for Columns Properties.

Judgment reversed and remanded with direction.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2423.
    BRYANT et al. v. HAYNIE.
    (454 SE2d 533)
   Birdsong, Presiding Judge.

Keita Bryant and Phillis Bryant appeal from a judgment in favor of Tracie L. Haynie. While in a parking lot with a crowd of people waiting to enter a nightclub, Haynie was severely injured when Keita Bryant drove a car through the crowd and struck her and several other people.

In Fulton County State Court, Haynie sued the Bryants, the owner of the parking lot, and the operator of the nightclub. The owners of the parking lot and nightclub were alleged to have been negligent by failing to provide adequate measures to prevent injury to the patrons, and Keita Bryant was alleged to have been negligent in the operation of the car. Phillis Bryant, the owner of the car driven by her son, was alleged to be liable under the family purpose doctrine.

The complaint also alleged that the owner of the property and the operator of the nightclub were subject to the jurisdiction and venue of the court, that the Bryants were residents of DeKalb County, and that all defendants were joint tortfeasors and were jointly and severally liable to Haynie for their combined negligence. The complaint also alleged that Haynie had incurred far more than $200,000 in medical expenses as a result of the defendants’ negligence.

Although served with process, the Bryants did not answer the complaint within the 30-day period prescribed by OCGA § 9-11-12 (a) or the 15-day grace period allowed by OCGA § 9-11-55 (a). Ultimately, the Bryants moved to open the default under OCGA § 9-11-55 (b). The Bryants asserted that Haynie’s complaint was defective because it did not assert facts showing that the court was the proper jurisdiction and venue in which to bring the complaint. With the parties’ consent, however, the case was transferred to the State Court of DeKalb County.

The motion to open the default was denied because the Bryants did not show that their failure to answer was the result of excusable neglect; default judgment on liability was entered, and the case on damages was tried to a jury. After the jury returned a verdict for $257,549.04 in medical expenses and $870,000 for pain and suffering, the trial court deducted $25,000 (the amount of a settlement with the owner of the land) and awarded judgment in favor of Haynie and against the Bryants for $1,102,549.04.

The Bryants now allege that the trial court erred by denying their motion to open the default because the complaint failed to allege venue and jurisdiction against them; that the trial court erred by granting Haynie’s motion in limine to exclude evidence concerning the settlement with the other defendants; and the trial court also erred by denying the Bryants’ motion in limine to exclude evidence of special damages because the complaint failed to allege specifically the amount of special damages. Held:

1. The Bryants’ allegation that the trial court erred by refusing to open the default is without merit. Under our law, a default may be opened if the Bryants satisfied the four conditions and one of the three grounds for opening a default. The four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed to trial, and (4) setting up a meritorious defense. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) a proper case. See OCGA § 9-11-55 (b). Whether to open the default on one of the three grounds rests within the discretion of the trial judge. Powell v. Eskins, 193 Ga. App. 144, 145 (387 SE2d 389). Here, the trial court found that the Bryants met the four conditions for opening a default, but denied the motion since the three grounds were not established.

In particular, the trial court found that the Bryants had not established that their failure to answer was the result of excusable neglect. The Bryants’ excuse for failing to answer was that they believed that they were excused from filing an answer because their insurance carrier had earlier filed an interpleader action. The record fully supports the trial court’s findings rejecting this contention. When counsel for the other defendants learned that no answer had been filed for the Bryants, he contacted the Bryants, told them about the 15-day grace period, pointed out the consequences of failing to answer, and encouraged the Bryants to file an answer. Moreover, the other defendants’ attorney called the Bryants’ insurance carrier and advised that company about the status of the case and that no answer was filed. Under these circumstances, it cannot be said that the trial court abused its discretion by refusing to find that the failure to answer was excusable.

As the record is devoid of any evidence even suggesting that a providential cause (see Thomas v. State, 118 Ga. App. 748 (165 SE2d 477); Evans & Pennington v. Nail, 7 Ga. App. 129, 136 (66 SE 543)) was responsible for the Bryants’ failure to file a timely answer, the trial court did not abuse its discretion by refusing to open the default on that basis. Moreover, as the record plainly shows the Bryants’ failure to answer was the result of their wilful disregard of their obligations under our law, the trial court did not abuse its discretion by finding that this was not a proper case for opening the default.

The Bryants’ contention that the complaint was defective is without merit. The complaint was filed in Fulton County against several joint tortfeasors under 1983 Ga. Const., Art. VI, Sec. II, Par. IV and OCGA § 9-10-31. Although the complaint did not specifically assert that venue against the Bryants was on this basis, the complaint did assert the facts on which venue depended. OCGA § 9-11-8 (a) (2). In any event, by failing to answer, the Bryants waived any objection to venue. OCGA § 9-11-12 (h) (1); Bouldin v. Contran Corp., 167 Ga. App. 364 (306 SE2d 685).

2. The Bryants’ allegation that the trial court erred by granting Haynie’s motion in limine to exclude evidence of her prior recovery is also without merit. The fact and amount of a settlement with other parties is not relevant to the amount of damages to be awarded in this case and were properly excluded from the jury’s consideration. OCGA § 24-2-1; Allison v. Patel, 211 Ga. App. 376, 381-385 (438 SE2d 920); Carney v. JDN Constr. Co., 206 Ga. App. 785, 787-788 (426 SE2d 611).

3. Finally, the Bryants contend the trial court erred by denying their motion in limine to exclude any evidence of special damages Haynie incurred because she did not specifically plead special damages in the complaint. Under OCGA § 9-11-9 (g), “[w]hen items of special damage are claimed, they shall be specifically stated.” The record shows that the complaint alleged that Haynie had incurred “far more than $200,000” in medical expenses, and in the pretrial order Haynie asserted medical expenses in excess of $265,000. There is thus no factual support for the Bryants’ assertion that OCGA § 9-11-9 (g) was violated. Further, the remedy for failure to plead special damages specifically is to move for a more definite statement of Haynie’s claim. Avery v. K. I., Ltd., 158 Ga. App. 640, 641 (281 SE2d 366). See also Georgia Civil Practice, § 3-3 (G). The Bryants did not so move. This enumeration of error is without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Decided January 20, 1995

Reconsideration denied February 28, 1995.

W. Clint Rhodes, for appellants.

M. Gino Brogdon, Eugene D. Butt, for appellee.


text:
    A94A2631.
    JENKINS v. THE STATE.
    (454 SE2d 543)
   Birdsong, Presiding Judge.

James Lee Jenkins appeals his conviction of robbery by force. He contends the trial court erred by admitting his statement in evidence, by allowing in evidence the hearsay statement of the victim and the victim’s identification of Jenkins, and by refusing to redact his aliases from the indictment. Jenkins also contends the verdict was greatly against the weight of the evidence. Held:

1. On appeal this court reviews the sufficiency, not the weight, of the evidence and we view the evidence in the light most favorable to the jury’s verdict. Thus, we have no power to grant a new trial based on the weight of the evidence. Considering the evidence as we must, we find ample evidence to sustain this conviction within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). In addition to his identification by the victim, when he was apprehended, Jenkins had in his possession property taken from the victim.

2. Jenkins’ contention that the trial court erred by allowing the victim to read his prior consistent statement is without merit. Edwards v. State, 255 Ga. 149, 150-151 (335 SE2d 869). Although Jenkins asks us to reject this precedent of our Supreme Court and adopt another approach, this court has no such authority. Moreover, our law authorizes rehabilitation of witnesses through prior consistent statements. Knight v. State, 210 Ga. App. 228, 230 (435 SE2d 682).

3. Jenkins also contends that his identification by the victim was impermissibly tainted and, thus, inadmissible because he was identified in a showup as he sat alone in the rear of a police car. The mere fact that Jenkins was in a police car when he was identified, however, does not taint his identification. The victim saw Jenkins four times that night prior to his identification and refused to identify another person who matched Jenkins’ physical description. Under the circumstances, as the victim identified Jenkins shortly after the event (Ingram v. State, 211 Ga. App. 821, 822 (441 SE2d 74)), and the circumstances of the showup were not sufficient to taint the victim’s identification of Jenkins, there was no error. Baines v. State, 201 Ga. App. 354, 357 (411 SE2d 95).

Decided February 2, 1995

Reconsideration denied February 28, 1995

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

4. The trial court also did not err by refusing to redact Jenkins’ aliases from the indictment. Radford v. State, 140 Ga. App. 195 (230 SE2d 345).

5. Jenkins contends the trial court erred by admitting in evidence his statement to the police that he had not robbed the victim, and that his twin brother had committed the crime. Although Jenkins contends he had not been advised of his rights at the time he gave this statement, the evidence showed that he made this statement after having been given the Miranda warnings, and that in any event, Jenkins spontaneously made these statements to the police. Accordingly, there was no error.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2815, A94A2816.
    LYNAS v. WILLIAMS; and vice versa.
    (454 SE2d 570)
   Birdsong, Presiding Judge.

Appellee/cross-appellant Hugh Williams brought suit against appellant/cross-appellee James Lynas d/b/a Executive Collision Services (Lynas) averring, inter alia, that appellant’s conduct in repairing appellee’s car violated the Fair Business Practices Act of 1975, specifically OCGA § 10-1-393 (b) (7). Appellant/cross-appellee Lynas appeals from the orders of the trial court denying his motions for summary judgment and directed verdict, and denying in part his motion for j.n.o.v. or in the alternative for new trial. Cross-appellant/ appellee Hugh Williams cross-appeals from the order of the state court granting in part cross-appellee’s motion for j.n.o.v. with respect to exemplary damages and denying cross-appellant’s motion for supersedeas bond. Held:

Case No. A94A2815

1. Appellant Lynas first enumerates that the trial court erred in denying his motion for summary judgment, on the grounds of lack of a genuine issue of material fact to at least one of the essential elements of appellee Williams’ claim. This question is moot. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61); First Financial Ins. Co. v. Mathis, 214 Ga. App. 537 (448 SE2d 87); Hitchcock v. Tollison, 213 Ga. App. 477, 478 (1) (444 SE2d 844); compare Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154 (264 SE2d 662). Moreover, even assuming error had occurred as averred in appellant’s first enumeration, the circumstances before us fall within the general rule that “ ‘[w]here a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.’ ” First Financial Ins. Co., supra at 538, quoting Dunlap v. Dunlap, 234 Ga. 304, 306 (3) (215 SE2d 674). Sufficiency of the evidence will be addressed in relation to appellant’s second enumeration of error; see Division 3 (b) below.

2. Appellant Lynas contends the trial court erred in not admitting certain photographs. This issue is not preserved for appeal as it is not reasonably contained within the scope of appellant’s enumerations of error. Jones v. Sauls, 213 Ga. App. 55, 58 (3) (c) (443 SE2d 693). Moreover, cursory examination of the transcript does not reveal that the trial court abused its discretion in failing to admit these photographs.

3. Appellant Lynas contends the trial court erred in denying his motions for directed verdict and motion j.n.o.v., as “there was no evidence presented at trial in support of all the required elements of appellee’s cause of action.”

(a) In support of this enumeration appellant asserts that appellee failed to give the statutorily required notice of OCGA § 10-1-399 (b). Appellant’s contention that the notice must be given by the administrator of the FBPA is without merit; notice may be given by the claimant or his attorney. Compare Sharpe v. Gen. Motors Corp., 198 Ga. App. 313 (1) (401 SE2d 328) and Paces Ferry Dodge v. Thomas, 174 Ga. App. 642, 643 (1) (331 SE2d 4). While the notice, pursuant to OCGA § 10-1-399, is not technically an element of a cause of action for a FBPA violation (see Zeeman v. Black, 156 Ga. App. 82, 87 (273 SE2d 910)), it is a statutory prerequisite to the filing of a FBPA suit that adequate written notice be timely sent. OCGA § 10-1-399 (b); see Paces Ferry Dodge, supra at 643 (1). The notice requirement of OCGA § 10-1-399 (b) is to be liberally construed, and the sufficiency of notice is a question for the court. Sharpe, supra at 313 (1); Paces Ferry Dodge, supra at 643 (1). The trial court found that “the letter addressed to Jim Lynas and executed by Hugh Williams on October 15, 1987, fulfills the statutory notice required” by OCGA § 10-1-399 (b). Construing the letter liberally, as we are required to do, we find the trial court did not err in concluding that the letter provided sufficient notice, under the provisions of OCGA § 10-1-399 (b), of a demand for relief based on a reasonably described FBPA violation. Compare Paces Ferry Dodge, supra.

(b) Appellant Lynas contends, inter alia, that the trial court erred, as enumerated, as appellant’s conduct had or has no potential for harm to the general consuming public but occurred during an essentially private transaction. “ ‘One may bring a private suit under the FBPA only if he is individually injured by the breach of a duty owed to the consuming public in general. (OCGA § 10-1-399) does not encompass suits based upon allegedly deceptive or unfair acts or practices which occur in an essentially private transaction. In those circumstances, even though the plaintiff may be a “consumer” with regard to the transaction, if the deceptive or unfair act or practice had or has no potential for harm to the general consuming public, the allegedly wrongful act of the defendant was not made in the context of the consumer marketplace. Unless it can be said that the defendant’s actions had or has potential harm for the consumer public the act or practice cannot be said to have “impact” on the consumer marketplace and any “act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.” State of Ga. v. Meredith Chevrolet, 145 Ga. App. 8, 12 ((244 SE2d 15) (1978)). When a “consumer” suffers damage as the result of an unfair or deceptive act or practice which had or has potential impact solely upon him and which is not and could not be a source of damage to any other member of the consuming public, there is no public interest to be served by proceeding under the FBPA, and the aggrieved party is relegated to pursuit of relief under other statutory or common law principles.’ Zeeman v. Black, [supra at 84-85]. ‘The FBPA is no panacea for the congenital ills of the marketplace (and) does not instantly convert every alleged breach of contract into a violation of the (act).’ (Citation and punctuation omitted.) DeLoach v. Foremost Ins. Co., 147 Ga. App. 124, 125 (248 SE2d 193).” Gross v. Ideal Pool Corp., 181 Ga. App. 483, 484-485 (1) (352 SE2d 806). “This is a plain breach of contract case, and the trial court [erred in denying] a directed verdict on [appellee’s] FBPA claim.” Id. Appellee Williams admitted in his testimony that appellant (who owned and operated an automobile repair/restoration shop) had seen appellee’s 1967 limited production Chevrolet Camaro automobile at appellee’s house and stopped to inquire about purchasing the vehicle; appellee declined to sell but appellant kept stopping by appellee’s house attempting to buy the car; appellant stopped by “often enough that we got to know each other a little bit”; appellant would tell appellee how good he was at restoring automobiles, and “so finally after a number of months I decided that I wanted to get the car restored”; and finally, appellee told appellant he was not interested in selling but was interested in getting restoration work done on the car when appellant called again to purchase the car. This series of events led to the oral agreement here at issue.

We find that the circumstances here establish, plainly and indisputably, that the agreement at issue was entered into as a result of an essentially private transaction; appellant’s alleged acts and conduct did not in this instance arise in the context of the consumer marketplace. “Here, the alleged deception was not introduced into the stream of commerce. Nor was it reasonably intended to impact on any ‘market’ other than [appellee Williams].” Larson v. Tandy Corp., 187 Ga. App. 893, 896 (4) (371 SE2d 663). While appellee may have a cause of action based on some other ground, there exists no viable cause of action based on a claim under the FBPA. The trial court erred as enumerated. Compare Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 796 (2) (449 SE2d 128); Sharpe, supra at 314 (2); Burdakin v. Hub Motor Co., 183 Ga. App. 90 (357 SE2d 839); see Gross, supra. Paces Ferry Dodge, supra, is factually distinguishable and not controlling. In Paces Ferry Dodge, “the defendant car dealer put a car in its sales lot and represented to the consuming public generally that it was ‘new when it was deteriorated or representing the car was of a particular standard, quality, or grade’ when the dealer could have readily determined that it was not.” Burdakin, supra at 91.

Additionally, appellee testified that appellant stated his work was “pure work,” that appellee would be “extremely pleased” by the caliber of the work, and that the work would be “stunning” and appellee was in fact “stunned” by it. These general statements as to the nature of the work constitute “puffing,” and are so subjective in nature and so lacking in specificity as to any claim of workmanlike standard as to preclude a reasonable person in like circumstance from harboring any genuine reliance thereon as to any particular quality of work that would be accomplished in the future. “The Fair Business Practices Act incorporates the ‘reliance’ element of the common law tort of misrepresentation into the causation element of a FBPA claim. Zeeman v. Black, [supra at 87]. Consequently, justifiable reliance is an essential element. Condon v. Kunse, 208 Ga. App. 856, 859 (5) (432 SE2d 266).” Allen v. ReMax North Atlanta, 213 Ga. App. 644, 647 (4) (445 SE2d 774). Lack of justifiable reliance would constitute an additional reason for barring a FBPA claim. Id. at 648.

As the form of the verdict (to which neither side objected) so inextricably linked the jury’s finding in favor of appellee/plaintiff as to the FBPA claim with the claim for damages to the automobile, it cannot be determined whether the jury awarded all or any part of the general or exemplary damages solely for the damage to the automobile claim. Moreover, the verdict form, by specifying the general damage award pertained to “damages to automobile and/or violation of Fair Business Practices Act,” in this instance, rendered the award of general damages contradictory as to whether the $2,100 award pertained to both causes or as to only one — and, if so, to which one. A contradictory verdict is repugnant and void; no valid judgment can be entered thereon. Hilltop Terrace v. Baker, 261 Ga. 592, 593 (1) (408 SE2d 704). Therefore, in view of the above discussed error, we must set aside the judgment in this case, except as to the $4,000 award with $2,160 interest entered in favor of plaintiff as to Count 1 of the main action. The award as to Count 1 was not the subject of appeal.

Decided February 8, 1995

Reconsideration denied February 28, 1995

Ashenden, Flynn & Gottlieb, Edward D. Flynn III, for appellant.

H. Darrell Greene & Associates, H. Darrell Greene, Paul Shimek III, for appellee.

Case No. A94A2816

Cross-appellant enumerates that the trial court erred in setting aside sua sponte the award of exemplary damages. The jury found no intentional violation as to the FBPA claim. Exemplary damages shall be awarded only in cases of intentional violation. OCGA § 10-1-399. A court has inherent and statutory power to correct its own proceedings before final judgment. OCGA § 15-1-3. However, whether the trial court erred in setting aside the award of exemplary damages is moot in view of our holding in Case No. A94A2815 above, the appeal in A94A2816 shall be dismissed.

Judgment reversed in Case No. A94A2815; appeal dismissed in Case No. A94A2816.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2086.
    MORELAND AUTO STOP, INC. et al. v. TSC LEASING CORPORATION.
    (454 SE2d 626)
   Ruffin, Judge.

TSC Leasing Corporation (“TSC”) sued Moreland Auto Stop, Inc. (“Moreland”) for breach of a lease agreement, and the jury returned a verdict in favor of Moreland. TSC moved for j.n.o.v., and Moreland appeals the court’s order granting that motion.

In December 1990, Moreland, an automotive parts store and service center, agreed to purchase a computer known as a “laser cat” from Triad Systems Corporation (“Triad”). As part of the agreement, Triad gave Moreland a 30-day money-back guarantee. Moreland financed the laser cat through a lease with TSC, a leasing company specializing in computer leases. In connection with the lease, More-land’s president, Kelvin Davidson, executed a master lease, containing the general terms and conditions, and a lease schedule, identifying the specific equipment leased. The 30-day money-back guarantee on the laser cat was handwritten at the top of the master lease.

Subsequent to its acquisition of the laser cat, Moreland decided to purchase a more comprehensive computer system from Triad and financed that transaction through another TSC lease. In relation to this acquisition, Moreland entered into an agreement with Triad in which Triad agreed to install the equipment at Moreland’s shop. The original laser cat master lease and a lease schedule identifying the specific equipment governed Moreland’s lease with TSC. The lease schedule provided that the term of the lease was “non-cancelable” and would “commence on the date of acceptance of this Lease as set forth in the relevant Certificate of Acceptance.” In further explaining the certificate of acceptance, paragraph five of the lease schedule provided that “[u]pon receipt (and installation, if applicable) of the Equipment from the Supplier . . . Lessee shall furnish Lessor [with a certificate of acceptance]. . . .”

The computer system was delivered to Moreland’s shop in 24 boxes in March 1991. Approximately one week later, a Triad representative installed the mainframe, a terminal and a printer, but did not install the remaining equipment. On April 18, 1991, Davidson executed the certificate of acceptance acknowledging delivery, inspection and acceptance of the system by Moreland “for all purposes under [the lease] and [that it] is subject to all terms and conditions of the Lease.” In bold face print directly below the signature line is a statement which reads as follows: “LESSEE: DO NOT SIGN THIS RECEIPT UNTIL YOU HAVE ACTUALLY RECEIVED, INSPECTED AND ACCEPTED THE ABOVE DESCRIBED PROPERTY, THEN RETURN TO TSC LEASING.” Approximately a month and a half later, after repeated unsuccessful attempts to have Triad install the remaining equipment, Moreland shipped the entire system back to TSC. Although TSC initially refused to accept the equipment, after sending several notices of default to Moreland and accelerating the balance due under the lease, it eventually accepted it in October 1991. In January 1992, TSC sold the equipment at a private sale to Triad at a loss, then sued Moreland for the deficiency. After the jury returned a verdict in favor of Moreland, TSC moved the court for j.n.o.v., asserting the evidence demanded a verdict in its favor on all issues because installation of the equipment was not a condition precedent to commencement of the lease term and there was insufficient evidence to allow the issue of mitigation of damages to be presented to the jury. The trial court found the evidence and all reasonable deductions therefrom demanded a verdict in favor of TSC, and accordingly granted its motion.

1. On appeal, Moreland asserts the trial court erred in granting the motion because there was sufficient evidence presented to the jury to support a finding that Moreland did not breach the leasing agreement with TSC. In support of this assertion, Moreland argues the parties did not intend for the lease to commence until the equipment was installed. Relying on paragraph five of the lease schedule providing that “[u]pon receipt (and installation, if applicable) of the Equipment from the Supplier . . . Lessee shall furnish Lessor [with a certificate of acceptance] . . . ,” Moreland contends the certificate of acceptance executed by Davidson did not serve to commence the lease term because the equipment was not installed.

“The cardinal rule of construction [of contracts] is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” OCGA § 13-2-3. “[T]he court should ascertain the parties’ intent after considering the whole agreement and interpret each of the provisions so as to harmonize with the others. [Cit.]” Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989).

In this case, the lease clearly provides that it would “commence on the date of acceptance of this Lease as set forth in the relevant Certificate of Acceptance.” The evidence shows the date of acceptance on the certificate of acceptance was April 18, 1991. There is no evidence to support Moreland’s contention on appeal that the parties intended paragraph 5 of the lease schedule to establish installation as a condition precedent. Moreover, the only evidence concerning More-land’s understanding of paragraph 5 was the testimony of Davidson, its president, that he thought the provision meant TSC was supposed to install the system. When questioned further concerning his understanding of the lease, Davidson admitted he never read any of the documents before signing them. Since all the other testimony at trial and the entire agreement make it clear that the lease term would begin when the equipment was accepted, and Moreland’s president accepted the equipment, this argument is without merit.

Likewise, we find no merit in Moreland’s argument that the 30-day money-back guarantee applied to its lease of the computer system. All the testimony at trial showed that the guarantee applied only to Moreland’s acquisition of the laser cat. Because there was no conflict in any of the evidence concerning commencement of the lease or the guarantee, and the evidence introduced, with all reasonable deductions therefrom demanded a verdict for TSC, we find the trial court did not err in granting its motion for j.n.o.v. See Goggin v. Goldman, 209 Ga. App. 251 (433 SE2d 85) (1993).

2. Moreland also asserts the trial court erred in granting TSC’s motion for j.n.o.v. because sufficient evidence was presented at trial for the jury to consider the issue of TSC’s failure to mitigate their damages. While it is true that TSC had a duty to mitigate its damages, “[t]he burden is upon the party asserting that the opposite party could have lessened his damages, and such proof must include sufficient data to allow the jury to reasonably estimate how much the damages could have been mitigated.” (Citation and punctuation omitted.) Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 682 (3) (373 SE2d 849) (1988).

Decided February 28, 1995.

Fortson & White, Michael D. St. Amand, for appellants.

Erck, Dever & Merlin, H. Michael Dever, for appellee.

In the instant case, TSC introduced evidence showing that if the repossessed equipment were sold on the open market, the most it would sell for was $5,000. TSC further showed that because it was able to resell the equipment to Triad, it received $16,585.23. Although Moreland did not introduce any evidence showing how much TSC’s damages could have been mitigated, it relies on the retail price at the time it originally purchased the equipment and its own discounted price of approximately $19,000 in contending the damages could have been mitigated. Simply relying on the original purchase price and contending, without any supporting evidence, that TSC could have received that price on the resale of the repossessed equipment is not sufficient for the jury to have considered how much its damages could have been mitigated. See Considine Co. of Ga. v. Turner Communications Corp., 155 Ga. App. 911 (3) (273 SE2d 652) (1980). Therefore, Moreland “did not show as a matter of law, so as to preclude recovery altogether or of a particular amount, that [TSC] failed to mitigate [its] damages or to what extent [it] failed. [Cit.]” Dixon, supra at 682. Accordingly, we find no error.

3. Finally, although not enumerated as error, Moreland argues that TSC’s motion should not have been granted because it addressed legal issues not raised by TSC in its motion for a directed verdict. Since “ ‘on appeal an enumeration of error cannot be enlarged by brief to give appellant viability to an issue not contained in the original enumeration’. . . [cit.],” Simpson v. State, 214 Ga. App. 587 (1) (448 SE2d 370) (1994), we will not consider this argument.

Judgment affirmed.

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


text:
    A94A2115.
    JEFFERSON v. THE STATE.
    (454 SE2d 632)
   Pope, Presiding Judge.

On April 23, 1993, defendant Eric Keith Jefferson was indicted for rape. Defendant pled not guilty, and a jury trial took place on September 28-30, 1993. During the trial, after the close of evidence, but before the jury returned its verdict, defendant pled guilty to the lesser offense of aggravated assault with intent to rape. On September 30,1993, he was sentenced to serve five years in prison, with credit for time served, said sentence to run concurrently with a five-year sentence which he had received in another case. Subsequently, defendant moved to withdraw his guilty plea, and it is from the denial of this motion to withdraw that defendant appeals.

1. In his first enumeration, defendant contends that the trial court erred in holding that defendant’s motion to withdraw his plea was untimely because it was not filed during the term in which the trial court accepted defendant’s plea. We agree. The record in this case demonstrates that defendant, who was incarcerated at the time, sent his motion to withdraw the plea to the Clerk of the DeKalb Superior Court by registered mail, return receipt requested. The receipt that was returned to defendant shows that his motion to withdraw the plea was received by an agent of the clerk’s office in the county mail room on October 27, 1993, which was two days before the end of the term. The clerk’s office normally collected its mail from the mail room on the same day in which the mail was delivered. In this case, however, defendant’s motion to withdraw his plea was not stamped “filed” by the clerk’s office until November 1, 1993, five days after it was delivered. There is no explanation in the record for the cause of the delay in date-stamping defendant’s motion. Based on the above, we hold that the trial court should have deemed defendant’s motion filed on October 27, 1993, because the motion was received in plenty of time for it to have been picked up and stamped “filed” before the end of the term in which defendant entered his guilty plea. See Stephens v. Espy, 213 Ga. App. 580 (445 SE2d 292) (1994); Lavan v. Philips, 184 Ga. App. 573 (362 SE2d 138) (1987). Nonetheless, we conclude this error is harmless because the trial court did in fact hold a hearing on the merits of defendant’s motion on February 17, 1994.

2. In his second enumeration, defendant contends that the trial court erred in denying his motion to withdraw his plea because at the time the trial court accepted the plea the trial court did not make a factual finding on the record that there was a basis for the plea. We reject this contention. It is not necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for defendant’s guilty plea exists as long as there is evidence that the trial court is aware of the factual basis. Holman v. State, 202 Ga. App. 57 (413 SE2d 234) (1991). Here, defendant entered his guilty plea to a lesser included offense of rape after his case had been entirely tried before a jury, but before the jury had finished deliberating. Therefore, the trial judge in this case knew more about the facts of the case than a judge ordinarily taking a plea knows. Moreover, upon review of the record evidence, particularly the trial transcript, it is clear that a factual basis existed for the trial court’s acceptance of defendant’s plea.

3. In his final enumeration of error defendant argues that the State failed to carry its burden of proving that defendant’s plea was voluntarily and intelligently made, and thus, that the trial court erred in denying defendant’s motion to withdraw his plea. This argument is meritless. Before the trial court accepted defendant’s guilty plea the State questioned defendant under oath. Defendant stated that he could hear and understand the State’s statements and questions, that he was not under the influence of drugs or alcohol, and that his lawyer had explained the charges against him. Defendant also stated that he understood the rights he was giving up by pleading guilty, including the right to a jury trial, the right to counsel, the right to the presumption of innocence and the right not to incriminate himself. He admitted that no threats or promises had been made to influence his decision to plead guilty. Moreover, defendant admitted that he had thoroughly discussed his case with his lawyer and that he was satisfied with the services and advice given to him by his lawyer. Additionally, defendant said that he understood that the State was recommending that defendant be sentenced to five years in prison for aggravated assault with intent to rape and that the sentence should run concurrently with the five-year sentence he received in another case. Defendant also said he understood that the trial court was not bound to follow the State’s recommendation and that the trial court could impose the maximum sentence for aggravated assault, which was 20 years.

Defendant then pled guilty to, and confessed that he was guilty of, the offense of aggravated assault with intent to rape. Thereafter, defendant specifically stated that he understood all the questions asked of him and that he had given truthful answers to the questions. Defendant then signed a plea form which verified the information set forth above. The trial court accepted defendant’s plea and sentenced defendant in accordance with the State’s recommendation. Defendant also was given credit for time served.

“After pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion.” (Citation and punctuation omitted.) Threatt v. State, 211 Ga. App. 630, 631 (440 SE2d 61) (1994). Based on the above, we conclude that the trial court did not manifestly abuse its discretion in this case. Therefore, we affirm the trial court’s denial of defendant’s motion to withdraw his plea.

Decided February 28, 1995.

King & King, David H. Jones, John C. Leggett, for appellant.

Eric K. Jefferson, pro se.

J. Tom Morgan, District Attorney, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.