text:
    A99A1245.
    BROWN v. E.I. du PONT de NEMOURS & COMPANY et al.
    (525 SE2d 731)
   Phipps, Judge.

Leonard B. Brown, Jr. brought suit against E.I. du Pont de Nemours & Company (DuPont), Sears, Roebuck & Company, InterCity Products Corporation (USA), Trane Company and others for damages allegedly suffered as a result of his exposure to Freon, which he claimed leaked from heating and air conditioning units in his residences and other buildings. The trial court granted summary judgment to the defendants in four separate orders. The trial court also awarded attorney fees and expenses to Trane. Brown appealed from one of the summary judgment orders, but the trial court dismissed the appeal. Brown then filed a motion to vacate or set aside the order dismissing his appeal, claiming he never received notice of the order. That motion was also denied.

In his notice of appeal, Brown recites that he is appealing the order denying his motion to vacate or set aside. In his enumerations of error, Brown also challenges the order dismissing his appeal, the orders granting summary judgment against him, and the order awarding litigation expenses to Trane. We have jurisdiction over only one of Brown’s claims — the challenge to the order denying his motion to vacate or set aside. Because that order does not include the required findings, we vacate and remand.

1. Brown challenges the trial court’s dismissal of his appeal from one of the summary judgment orders. The dismissal of an appeal by the trial court is subject to direct appeal. The order dismissing Brown’s appeal was signed on October 7, 1997, nunc pro tunc to September 17, 1997. Brown filed his current notice of appeal on March 30, 1998.

As an appellate court, we have a duty to raise the question of jurisdiction in all cases where there may be doubt about its existence. The notice of appeal must be timely filed for appellate jurisdiction to exist.

Brown’s claim that he did not receive notice of the order dismissing his appeal within 30 days of its entry does not extend the time for filing a notice of appeal. Instead, if the court failed to provide Brown with proper notice of the order as required by OCGA § 15-6-21 (c), his recourse is a motion to set aside. But filing a motion to set aside does not extend the time for filing a notice of appeal either.

Because Brown failed to file a notice of appeal within 30 days after the entry of the appealable order complained of and that time period was not extended, we have no jurisdiction to review the order at issue.

2. Brown enumerates as error the trial court’s grant of summary judgment to DuPont, Sears, Inter-City, and Trane.

An order granting summary judgment is directly appealable. The trial court’s orders granting summary judgment were entered on June 16, 1997 (DuPont) and June 24, 1997 (Sears, Inter-City and Trane). After obtaining an extension of time to appeal, Brown filed a notice of appeal from the June 16, 1997 order on August 1, 1997. The trial court dismissed that appeal in an order entered retroactively to September 17, 1997.

Brown’s current notice of appeal was filed on March 30, 1998, more than nine months after the summary judgment orders were entered. Because the only notice of appeal before us was filed more than 30 days after the entry of the appealable summary judgment orders complained of, we have no jurisdiction to review those orders.

3. Brown attempts to challenge the trial court’s order granting litigation expenses to Trane, which was entered on October 15, 1997.

An appeal from an order awarding attorney fees or expenses of litigation under OCGA § 9-15-14 must be made by application unless the order is appealed as part of a judgment that is directly appealable. If Brown’s first appeal (from one of the summary judgment orders) had not been dismissed, a direct appeal from the order awarding litigation expenses would have been possible. Because no direct appeal was pending, Brown was required to file an application to appeal from the order awarding litigation expenses to Trane. He failed to do so. We therefore lack jurisdiction to consider the October 15, 1997 order.

Even if a direct appeal were possible, Brown did not file a notice of appeal from that order until March 30, 1998, more than five months after it was entered. As a result, for the reasons set forth in Divisions 1 and 2, we would not have jurisdiction to review the October 15, 1997 order under a direct appeal.

4. Brown contends the trial court erred by denying his motion to vacate and set aside the order dismissing his appeal. The order denying the motion to vacate and set aside was entered on March 2, 1998, and Brown filed a timely notice of appeal.

In his motion to vacate and set aside, Brown claimed he never received notice of the order dismissing his appeal. He submitted an affidavit supporting his claim. DuPont, Sears, Inter-City, and Trane all filed responses to Brown’s motion. The trial court granted Sears’s and Inter-City’s request for oral argument, and a hearing was scheduled for March 2, 1998, with notice given to all parties. Brown failed to appear at the hearing, and the trial court denied his motion to vacate or set aside.

A trial judge has a duty “to file his decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his decision.” If the trial court fails to send notice to the losing party, the losing party can file a motion to set aside the earlier order or judgment. Cambrón sets out the procedure to be followed in these circumstances: upon a finding that notice was not provided by the trial court, the motion to set aside should be granted, the order or judgment reentered, and the losing party given 30 days from the date of reentry to file a notice of appeal.

DuPont contends Brown was notified of the order dismissing his appeal during a hearing on October 7, 1997. Although the record shows that the trial judge told the parties that he was inclined to enter an order dismissing the appeal, he further stated that he was going to consider it overnight and then make a decision about what he wanted to do. The record does not reflect that the order at issue was presented and signed on October 7, 1997, in Brown’s presence. The trial judge’s indication of his likely action was not sufficient to satisfy the notice requirements of OCGA § 15-6-21 (c).

The issue is not whether Brown had knowledge that the order was entered but whether the trial judge carried out the duties imposed by OCGA § 15-6-21 (c). To implement the procedure set out in Cambrón, the trial court must first make a finding regarding whether the duty imposed by OCGA § 15-6-21 (c) was met. Here, the order appealed from made no findings of fact regarding notice to Brown and only listed his failure to appear as a potential reason for the denial. We are therefore unable to determine whether the court’s denial of Brown’s motion to vacate and set aside was proper under Cambrón.

As a result, we vacate the order denying Brown’s motion to vacate or set aside and remand the case to the trial court with direction to make the necessary findings under Cambrón. If the trial judge finds that Brown was not provided notice of the order dismissing his appeal, the motion to set aside must be granted and the order reentered. If the trial judge finds that notice of the order was sent and received, he should refuse to set aside the earlier order.

Judgment vacated and case remanded.

McMurray, P. J., and Andrews, P. J, concur.

Decided November 18, 1999.

Robert M. Goldberg, for appellant.

Leonard B. Brown, Jr., pro se.

McCullough Sherrill, George L. Murphy, Jr., Michael D. Crisp, Nall, Miller, Owens, Hocutt & Howard, James S. Owens, Jr., Charles R. Carson, Hawkins & Parnell, Warner S. Fox, for appellees.

        Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 860 (424 SE2d 33) (1992).

        Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983).

       Id.

       Id.

       Id.

       See OCGA § 5-6-38 (a).

       OCGA § 9-11-56 (h); McConnell v. Moore, 232 Ga. App. 700, 702 (503 SE2d 593) (1998).

       See OCGA § 5-6-38 (a).

       OCGA § 5-6-35 (a) (10), (b); Mitcham v. Blalock, 268 Ga. 644, 646-647 (4) (491 SE2d 782) (1997).

       Id.

        Serpentfoot v. Salmon, 225 Ga. App. 478 (483 SE2d 927) (1997).

       OCGA § 15-6-21 (c).

        Cambron v. Canal Ins. Co., 246 Ga. 147, 148 (1) (269 SE2d 426) (1980).

       Id. at 148-149.

        Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869, 870 (2) (481 SE2d 903) (1997); Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (2) (451 SE2d 810) (1994).

       Id.

       Id.

        Crawford v. Kroger Co., 183 Ga. App. 836, 837 (2) (360 SE2d 274) (1987).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1248.
    THORNTON et al. v. KUMAR et al.
    (525 SE2d 735)
   Miller, Judge.

Bob and Patricia Thornton sued Surender Kumar and Barry Gibbs to recover earnest money paid to Kumar and Gibbs as sellers in a real estate contract with the Thorntons. Kumar and Gibbs refused to return the earnest money, maintaining that the Thorntons failed to provide notice of termination as required by the contract. When all parties (except Gibbs) moved for summary judgment, the trial court granted Kumar’s motion and denied the Thorntons’, which ruling the Thorntons appeal. Because the Thorntons terminated the agreement without proper notice and breached the contract, we affirm.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.

Viewed in this light, the record shows that the Thorntons executed a real estate contract with Kumar and Gibbs. The Thorntons delivered earnest money to Kumar and Gibbs as provided by the contract. The contract provided for closing to occur on or before June 30, 1997, unless the date was extended in writing by the parties. The parties failed to close by that date because a bank held a lien against Gibbs that attached to the property. The parties agreed to extend the closing date to August 14, 1997.

On August 5, 1997, the Thorntons mailed a certified letter to Gibbs and his real estate agent, Denson, terminating the contract. Addressing Gibbs and Denson, the letter demanded that they return the earnest money “due to your inability to deliver good and marketable title to said real property because of the writ of fieri facias filed . . . against you.”

The first issue is whether the terms of the contract allowed the Thorntons to terminate the agreement before the closing date. The construction of contracts involves three steps. First, if no ambiguity appears, the trial court enforces the contract according to its terms, irrespective of all technical or arbitrary rules of construction. That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Secondly, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

The cardinal rule of contract construction is to ascertain the intention of the parties. Here the relevant section of the contract provides:

6. Examination of Title and Defects in Title. Purchaser shall have until the closing date in which to examine Seller’s title to the Property. In the event that Purchaser concludes in its sole discretion that Seller’s title is such that Seller will be unable to or will elect not to cure the defects therein in accordance with the Agreement, Purchaser may so notify Seller, and this Agreement shall thereby be terminated and of no further force or effect, whereupon the Earnest Money will [be] returned to Purchaser and neither party will have any further rights, remedies or obligations hereunder. Failure to so notify Purchaser [sic] of termination of this Agreement shall be deemed a waiver of such right of termination.

The Thorntons argue that this section of the contract grants them an unfettered discretionary right to terminate the contract before the closing date based on their assessment of Kumar and Gibbs’ ability to deliver clear title. Kumar and Gibbs counter that at most the Thorntons could only reach a reasoned assessment at closing.

The law favors a construction that will uphold the contract as a whole, and the whole contract should be looked to in arriving at the construction of any part. Here, we hold that section 6 of the contract is ambiguous and open to more than one interpretation regarding the Thorntons’ right to terminate the contract prior to the closing date. The contract when read as a whole, however, specifically addresses in section 10 the purchaser’s right to terminate at the time of closing. Reading these sections together, we hold that the right to terminate addressed in section 6 of the contract refers to a time prior to the closing date. Pursuant to this section, the Thorntons could terminate the contract prior to the closing date under specified circumstances.

Pretermitting a discussion of what those circumstances would be, we focus on whether the contract required that the Thorntons provide Gibbs and Kumar a specific form of notice of termination. Again, section 6 of the contract is ambiguous as to the requirements of notice for termination of the contract, stating that “Purchaser may so notify Seller. . . .” The last sentence of section 6, however, requires notice of termination and states that failure to provide notice “shall be deemed a waiver of the right of termination.” Section 22 of the contract sets out the requirements for notice:

Notices. All notices required or permitted by the terms hereof shall be given by hand delivery or sender-paid Federal Express overnight delivery, at the following addresses or at such other address as either party hereto shall in writing advise the other:
A: To Seller:
Gibbs and Kumar
P.O. Box 2035
Douglasville, GA 30133.

Therefore, read as a whole, the contract requires that the purchasers provide a specified notice of termination to the sellers pursuant to the requirements of section 22 of the agreement.

The Thorntons sent their notice of termination, by certified mail, to Gibbs and Denson (the real estate agent) at 6770 Fairways Drive, Douglasville, Georgia 30134. They did not send Kumar notice of the termination, and they sent Gibbs’ notice to the wrong address. No evidence reflects that the parties agreed, in writing, for the use of another address or to allow Denson to receive notice for Kumar and Gibbs.

Decided November 18, 1999.

Stevens & Associates, Ronald S. Stevens, Gil C. Varón, for appellants.

Tisinger, Tisinger, Vance & Greer, Charles D. Mecklin, Jr., for appellees.

“It is the duty of [the] courts to construe and enforce contracts as made, and not to make them for the parties.” The Thorntons, who are seeking to strictly enforce the contract, must stand on the contract as made by the parties, and they failed to provide proper notice to Kumar and Gibbs as required by the specific terms of the contract.

Section 13 of the contract states that “[i]n the event that Purchaser refuses to accept title to the Property as required by this Agreement or otherwise defaults in Purchaser’s obligations hereunder the Earnest Money shall be retained by the Seller. . . .” As promised, Kumar and Gibbs provided marketable title by August 14, 1997, but the Thorntons did not schedule a closing date and refused to accept title to the property. The evidence showed that the Thorntons improperly terminated the agreement by failing to provide Kumar and Gibbs notice of the termination as required by the contract. The Thorntons also refused to consummate the sale of the property as required by the contract. Because the Thorntons refused to accept title to the property, Kumar and Gibbs could retain the earnest money.

The trial court did not err in granting summary judgment to Kumar and Gibbs or in denying the Thorntons’ motion for summary judgment.

Judgment affirmed.

Blackburn, P. J, and Ellington, J., concur.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1995).

        Century 21 Pinetree Properties v. Cason, 220 Ga. App. 355, 358 (2) (d) (469 SE2d 458) (1996).

       Id.

       OCGA § 13-2-3.

       OCGA § 13-2-2 (4); Asian Square Partners, L.P. v. Cuong Quynh Ly, 238 Ga. App. 165, 167 (1) (518 SE2d 166) (1999).

       10. Termination. In addition to all other rights of Purchaser under this agreement and as provided by law (and not in lieu of any such rights), Purchaser, at Purchaser’s sole election and in Purchaser’s sole discretion, may cancel and terminate this Agreement by written notice to Seller, whereupon Seller shall return to Purchaser the Earnest Money, if any one or more of the following conditions or states of fact shall exist at the time of Closing... .

       Cf. Gosule v. Bestco, Inc., 227 Ga. App. 863, 864 (1) (490 SE2d 532) (1997), holding that where there are no manifestations of authority by the principal to a third party, apparent authority is not an issue.

       (Citation and punctuation omitted.) Atlanta Six Flags Partnership v. Hughes, 191 Ga. App. 404, 407 (2) (381 SE2d 605) (1989).

       Id.

       See McGuire v. Norris, 180 Ga. App. 383, 384 (1) (349 SE2d 261) (1986). The Thorntons do not challenge the amount as a penalty.


author: Phipps, Judge.

text:
    A99A1356.
    MARTIN v. THE STATE.
    (525 SE2d 728)
   Phipps, Judge.

Alphonso Martin was convicted by a jury of armed robbery. On appeal, Martin contends the trial court abused its discretion by (1) denying his motion for mistrial, which was made in response to testimony that improperly placed his character into evidence, and (2) replaying the victim’s entire testimony for the jury during its deliberations. Based on the overwhelming evidence of Martin’s guilt and the judge’s curative instructions following the improper testimony, we find that the trial court did not abuse its discretion by denying Martin’s motion for mistrial. The trial court’s decision to allow the jury to rehear the victim’s testimony was also within its discretion. For these reasons, we find no error, and we affirm.

On the morning of May 29, 1998, Edwina Sumpter was working alone at Ace Check Cashing. She saw Martin standing outside the store, assumed he was a customer, and unlocked the door to let him in. Once inside the store, Martin held a gun to Sumpter’s back, told her he was robbing the store, and told her not to look at him. When Sumpter looked at him, Martin pulled a stocking cap down over his face.

Sumpter gave Martin about $3,500 from the cash register. When Martin asked her to open the safe, she told him to stand in front of it. When he did, Sumpter was able to exit the store. She ran down the street, yelling that she was being robbed. Moments later, Martin exited the same door and ran down the street.

John Smith, a mechanic working next door, saw and heard Sumpter and saw Martin running down the street. Smith chased Martin until he crossed the street; then another civilian entered the chase.

Immediately after the robbery, Detective D. A. Dickerson was driving through the area and saw Sumpter running down the street screaming and pointing at Martin, who was running away from her. Dickerson arrested Martin with the help of Officer Berry. When Martin was arrested, he was carrying a bag containing a gun and a large amount of cash.

According to Officer Berry, Sumpter identified Martin at the scene. At trial, Sumpter identified Martin and testified that the gun taken from Martin was the one he held to her back during the robbery. Officer Berry confirmed that the same gun was taken from Martin shortly after his arrest.

After his arrest, Martin was taken to DeKalb County Police headquarters. After being advised of his Miranda rights, he was interviewed by Detective Redlinger. Martin confessed to robbing the Ace Check Cashing store and admitted that he had a gun during the robbery. His post-arrest statement was replayed to the jury during Detective Redlinger’s trial testimony.

1. Martin contends the trial court should have declared a mistrial when Detective Redlinger improperly placed his character into evidence. The testimony at issue was Redlinger’s response to a question from Martin’s trial counsel about Martin’s taped post-arrest statement:

MARTIN’S COUNSEL: What was talked about before the tape turned on ... ?
REDLINGER: More than likely I went in and, of course, introduced myself. I described the situation to him as far as what we had, what the victim said, what witnesses said, asked him if he would like to speak to us about the situation, and these are things he needs to think about when he makes his decision on whether he wanted to talk to us or not. And I also mentioned that I was familiar with his criminal history.

At that point, Martin’s counsel objected, and the judge sustained the objection. Martin’s counsel moved for a mistrial, but the judge denied his motion.

Next, Martin’s counsel asked for a curative instruction. The judge agreed and instructed the jury that, “whether this defendant does or doesn’t have any prior criminal history has absolutely nothing to do with this case. I don’t understand why this detective made this statement. It was just completely uncalled for. It has nothing to do with the case.” In the presence of the jury, the judge sternly admonished the detective for his improper statement.

Martin contends the judge’s actions were not sufficient to undo what Redlinger had done and that he was denied the right to a fair trial. We agree that Redlinger’s testimony about Martin’s prior criminal history was improper and unnecessary. But the decision whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge.

To determine if the trial judge abused his discretion by denying Martin’s motion for mistrial, we must review more than the statement itself. We should also consider the other evidence in the case and the court’s and counsel’s action in dealing with the impropriety. The evidence against Martin included testimony by the victim that he committed the crime, corroborating testimony by a detective and others regarding his flight from the scene, and his own confession. The presence of strong evidence of Martin’s guilt lessens the prejudicial impact of Redlinger’s statement.

We also look at the trial court’s response to the improper testimony. In Sims, the Supreme Court of Georgia recognized that curative instructions are an adequate remedy where the defendant’s character is improperly placed in evidence by reference to a prior conviction or criminal activity. The trial judge not only gave prompt curative instructions, but also reprimanded the detective in the presence of the jury for his improper behavior.

Although we do not condone what has become a far too frequent practice when a law enforcement officer takes the stand — an improper reference to a defendant’s prior criminal history — we do not find that these particular circumstances warrant a reversal of Martin’s conviction. Based on the overwhelming evidence of Martin’s guilt and the trial court’s prompt and stem response to Redlinger’s improper testimony, we hold that the trial court did not abuse its discretion by denying Martin’s motion for mistrial.

2. Martin claims the trial court abused its discretion by allowing the jury to rehear Sumpter’s testimony in its entirety during its deliberations. By replaying all of Sumpter’s testimony instead of those portions specifically requested by the jury, Martin claims that Sumpter’s testimony was unduly emphasized and he was denied a fair trial.

During its deliberations, the jury requested to rehear Sumpter’s testimony “about where she heard something or she felt something in her back.” The judge instructed the court reporter to replay her entire testimony, explaining to the jury that he could not emphasize certain parts of it but instead wanted them to hear all of the testimony in context. Martin’s counsel objected to the judge’s decision to replay her entire testimony.

We have previously upheld a trial judge’s right to permit the jury to rehear only the testimony of one witness they requested and to allow the jury to rehear only part of the testimony of a witness, despite defense counsel’s request that the entire testimony be replayed. “It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” The trial judge also has discretion to allow the jury to review other evidence relating to the same factual issue to avoid placing undue emphasis on the evidence requested.

Decided November 18, 1999.

Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

To demonstrate an abuse of the judge’s discretion, Martin must show that “special circumstances which might work an injustice were present.” We find that no such circumstances were present here. As a result, we hold that the trial court did not abuse its discretion in replaying Sumpter’s entire testimony.

Judgment affirmed.

Barnes and Ellington, JJ, concur.

        Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

       Id.; Sabel v. State, 250 Ga. 640, 643 (5) (300 SE2d 663) (1983), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984).

       See Gibson v. State, 233 Ga. App. 838, 840-841 (3) (505 SE2d 63) (1998) (“[i]n light of the overwhelming nature and sheer volume of the evidence against Gibson, it is extremely doubtful that a single reference to Gibson’s desire to avoid going back to jail would have materially influenced the jury’s decision”).

        Johnson v. State, 236 Ga. App. 356, 358 (3) (511 SE2d 921) (1999); Guthrie v. State, 147 Ga. App. 351, 357 (13) (248 SE2d 714) (1978).

        Byrd v. State, 237 Ga. 781, 782 (229 SE2d 631) (1976).

       Id. at 783.

       (Punctuation omitted.) Sexton v. State, 189 Ga. App. 12, 13 (3) (374 SE2d 824) (1988).

       See id. (“[t]he fact that the jury reheard the entire testimony of the victim and the! appellant did not constitute a special circumstance that might work an injustice”).


author: Ruffin, Judge. Andrews, Presiding Judge,

text:
    A99A1376.
    STRICKLAND v. HOSPITAL AUTHORITY OF ALBANY/DOUGHERTY COUNTY et al.
    (525 SE2d 724)
   Ruffin, Judge.

Bobbie Strickland, as executor of the estate of his wife, Gloria Strickland, sued the Hospital Authority of Albany/Dougherty County d/b/a Phoebe Putney Memorial Hospital, as well as several employees of the hospital, alleging that the defendants negligently injured his wife. At the close of the evidence, the defendants moved for a directed verdict. The trial court reserved ruling on the motion and sent the case to the jury. The jury found in favor of Strickland and awarded $105,000 in damages. Following the verdict, the trial court granted the defendants’ motion for directed verdict. Strickland appeals, asserting three enumerations of error. For reasons that follow, we reverse.

In 1984, Gloria Strickland was diagnosed with breast cancer. As a result of the cancer, her bones became so fragile that she was unable to bear her body’s weight, and she could not stand or walk. If she needed to be moved, her husband would lift her by putting one arm under her legs and his other arm around her back before picking her up.

On November 8, 1990, the Stricklands went to Phoebe Putney Memorial Hospital for Mrs. Strickland’s radiation therapy. Prior to receiving radiation therapy, she was sent for an MRI. Mr. Strickland took his wife to the MRI building in a wheelchair. Once there, they met with two MRI technologists, Adrienne Cadwell and Deborah Lloyd, who informed the Stricklands that Mrs. Strickland needed to change into a gown. Because Mr. Strickland knew how to handle his wife, he volunteered to dress her in the gown. The technologists also suggested that Mrs. Strickland use the rest room prior to the procedure, and her husband took her there.

When the time came for the MRI, the technologists told the Stricklands that Mrs. Strickland would have to be moved to a stainless steel wheelchair. Once again, Mr. Strickland volunteered to move his wife, but the technologists said that they would do it. Mr. Strickland warned the technologists that his wife’s legs were extremely fragile and that she could not bear any weight on them. He also demonstrated the technique he used to lift his wife.

After Mr. Strickland returned to the sitting area, he heard a loud snap followed by his wife screaming, ‘You broke my leg. My leg is broke.” He ran back into the room and saw the technologists holding his wife in an upright position. Mr. Strickland testified that he could see that his wife’s right leg was broken between the knee and the hip. Following this incident, Mrs. Strickland was hospitalized for 28 days, and the Stricklands incurred over $18,000 in medical expenses related to the broken leg.

In granting the defendants’ motion for directed verdict, the trial court found that the case involved professional rather than ordinary negligence. The trial court concluded that a directed verdict was warranted because Strickland failed to introduce expert testimony to establish the requisite standard of care. The trial court further found that there was no evidence of ordinary negligence.

1. In his first enumeration of error, Strickland argues that the trial court erred in granting a directed verdict in favor of defendants. Strickland maintains that this is a case of ordinary, rather than professional, negligence and that there was evidence of ordinary negligence. We agree.

(a) As an initial matter, we must address whether the negligence alleged by Strickland constitutes ordinary or professional negligence. Not all injuries that occur in a medical setting “are the result of professional negligence; they may be solely attributable to ordinary or simple negligence.” “Whether the negligence alleged by a plaintiff is ordinary negligence or professional malpractice is a question of law.”

In its order, the trial court concluded that this was a case of professional negligence because the hospital personnel had received medical training and had exercised professional judgment in moving Mrs. Strickland. However, the mere fact that the technologists had medical credentials does not make the case one of professional malpractice. If the alleged negligent act of the hospital employees did not require the exercise of expert medical judgment, the fact that the employees had expert credentials would not transform the casé into medical malpractice.

Mrs. Strickland was injured while being moved from one wheelchair to another wheelchair. Contrary to the defendants’ contention, “[t]he record does not show . . . that this aspect of [Mrs. Strickland’s] care was required to be performed by a person with medical training or that it involved the exercise of medical judgment or required medical expertise.” Rather, the record demonstrates that Mr. Strickland, who was not a medical professional, successfully moved his wife twice immediately prior to relinquishing her care to the medical professionals. Mr. Strickland offered to move his wife into the second wheelchair. According to Lloyd, the only technologist to testify at trial, she had no particular reason for declining Mr. Strickland’s offer other than “convenience.” Accordingly, Lloyd’s own testimony supports the conclusion that medical training and expertise were not required to move Mrs. Strickland. Under these circumstances, “the safe movement of [Mrs. Strickland] from [one wheelchair] to [another] wheelchair was merely an act of relative physical strength and dexterity rather than an act requiring the exercise of expert medical judgment.” Accordingly, the trial court erred in concluding that this case involves professional negligence.

(b) The trial court also erred in directing a verdict in favor of defendants. A trial court should direct a verdict “only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a).” In considering whether the trial court erred by granting the defendants’ motion for directed verdict, “we review and resolve the evidence and any doubts or ambiguities in favor of. . . the party opposing the motion for directed verdict.”

Viewing the evidence in favor of the Stricklands, we find that there is some evidence from which jurors could have concluded that the defendants were negligent. The record shows that Mr. Strickland told the technologists that his wife could not bear any weight at all on her legs and he demonstrated the technique that he employed to lift his wife by putting one arm under her legs and his other arm around her back. The testimony is undisputed that the technologists did not lift Mrs. Strickland in the manner suggested by her husband, but lifted her by her arms. Although defendants contend that Mrs. Strickland never bore any weight on her legs, the evidence was sufficient to permit the jury to conclude otherwise. According to Mr. Strickland, the technologists held his wife in an upright position, which supports the inference that she bore at least some weight on her legs. When her leg broke, Mrs. Strickland cried out ‘You broke my leg,” which suggests that she attributed her injury to the actions of the technologists. In view of the evidence that the technologists assumed the responsibility for lifting Mrs. Strickland and, in so doing, ignored Mr. Strickland’s suggestions for safely lifting his wife, we cannot agree with the trial court’s conclusion that there was no evidence of negligence.

2. In view of our holding in Division 1, we need not address Strickland’s remaining enumerations of error.

Judgment reversed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ, concur. Andrews, P. J., dissents.

Andrews, Presiding Judge,

dissenting.

Because I believe the trial court correctly determined that this case involved an issue of professional negligence, I respectfully dissent.

The only evidence at trial as to what happened when the hospital employees tried to move Mrs. Strickland came from the employees themselves. The deposition of Deborah Lloyd, the radiology technician, was read at trial, and in it she described the procedure they were using to move Mrs. Strickland from one wheelchair to the other. She said the wheelchairs were placed facing each other with about eight inches between them and she and the other technician stood on either side of Mrs. Strickland and the procedure was to “actually pick the patient up, pivot to the next chair, but before we got that far is when we heard the fracture.” Lloyd stated that Mrs. Strickland’s feet would have been touching the floor but she and the other technician were supporting her weight.

Lloyd also testified as follows:

Q. Were you ever given any sort of formal instruction of any sort on how you determine the method you use to transfer a patient?
A. I had my education in school, which you have your basic biomechanics of moving patients, and then experience in talking with the patients also decides what is best for that patient.

Lloyd said that it was a judgment call as to how she would move the patients, depending on what she thought would be best under the circumstances. .

Jean Sancken, another employee who stood behind the wheelchair to secure it, testified by deposition that she was behind one wheelchair and that the wheelchairs were facing each other. She could not remember exactly what happened. All she could say was that Mrs. Strickland was not even standing up yet, “they had just barely moved her” when “she let out a scream or a moan or something.”

In concluding that the trial court erred in finding this was a casé of professional negligence, the majority cites to Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107 (354 SE2d 872) (1987). But, in McNor-rill, the only claim advanced was that the nurse was unable to “ ‘sustain the weight of [the patient].’ ” Id. Therefore, McNorrill is inapplicable here as there was no evidence that the technicians were unable to bear Mrs. Strickland’s weight.

Similarly, in Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299 (454 SE2d 190) (1995), the record did not show that any expertise was involved in getting the patient into bed and the only claim was that the hospital employee did not exercise enough “ ‘physical strength and dexterity5 ” in moving the patient. Id. at 300.

Holloway v. Northside Hosp., 230 Ga. App. 371 (496 SE2d 510) (1998), however, is on point because the issue was whether the nurses failed to exercise proper care to prevent the patient from falling. In Holloway, this Court concluded that expert testimony would be required to determine whether the nurses deviated from the applicable standard of care. Id. at 372.

Here, Lloyd’s undisputed testimony was that she decided how to move the patient based on her training and experience. There was no evidence as to how or why the injury occurred. The undisputed evidence of the only people present at the time was that Mrs. Strickland did not put any weight on her leg during the attempted move. Therefore, from the evidence presented at trial, it was not possible for the jury to determine whether the technicians were negligent in moving Mrs. Strickland.

Decided November 18, 1999

John T. Croley, Jr., Terrence J. Paulk, for appellant.

Langley & Lee, Carl R. Langley, for appellees.

Moreover, although Mr. Strickland testified as to the method he used to move his wife, he had no training in the proper way to move patients and the mere fact that he had moved his wife without injury up to this point does not necessarily show that his method was the correct or preferred one. Indeed, there was testimony at trial that Mrs. Strickland’s bones were very fragile and she suffered other breaks after the one to her leg. Thus the only way to show that the technicians deviated from the requisite standard of care was, as the trial court correctly determined, by expert testimony. See Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (413 SE2d 720) (1992) (if the plaintiff cannot establish negligence and causation without expert testimony, the case is generally a professional malpractice action).

Therefore, because Lloyd testified that she had received training in how to move patients and that she determined the best method of moving the patient based on her training and experience, and because Strickland argues that the technicians knew or should have known that moving Mrs. Strickland in a certain way would subject her to harm, this case is a professional negligence action. Holloway, supra at 372. Because there was no expert testimony on the applicable standard of care, the judgment of the trial court should be affirmed.

        Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299 (454 SE2d 190) (1995).

        Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998).

        Jones v. Bates, 261 Ga. 240, 242 (2) (403 SE2d 804) (1991).

        Dent, supra.

        Moore, supra at 300.

         Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110 (354 SE2d 872) (1987).

       (Punctuation omitted.) Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (1) (470 SE2d 455) (1996).

       (Punctuation omitted.) Plane v. Uniforce MIS Svcs., 232 Ga. App. 757, 758 (503 SE2d 621) (1998).

       Defendants do not challenge the admissibility of this statement. Although it arguably constitutes hearsay, the trial court apparently treated it as an exception to the prohibition against hearsay, winch it was authorized to do. See Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 426 (504 SE2d 245) (1998) (excited utterances come within the res gestae exception to the hearsay rule).

       See McNorrill, supra at 110-111 (2) (issue of fact existed regarding whether hospital employee was negligent); Brown v. Durden, 195 Ga. App. 340 (393 SE2d 450) (1990) (physical precedent) (jury issue existed regarding whether medical assistant exercised due care).

       That the jury was confused is apparent from a note sent out during deliberations. The note asked: “If the plaintiff is rewarded, does this mean Lloyd is negligent? We do not think she is negligent.”


author: Ruffin, Judge.

text:
    A99A1446.
    McCOLLUM v. O’DELL.
    (525 SE2d 721)
   Ruffin, Judge.

This case presents a perfect example of what happens when lay persons exercise their right to draft a legal document. Glenn McCol-lum sued Robert O’Dell to recover amounts allegedly due on a loan agreement contained in a handwritten document. McCollum claims he loaned the money to a partnership of which O’Dell was a partner. O’Dell maintains that the loan was made to his partner, Basile Anto-nelli, individually rather than to the partnership. Following a bench trial, the trial court ruled in favor of O’Dell, and McCollum appeals. Because the trial court’s ruling rests upon an erroneous legal theory, we reverse and remand.

The record demonstrates that O’Dell and Antonelli formed a partnership for the purpose of opening a restaurant. Although the two men intended to incorporate the restaurant, the paperwork was never completed.

In December 1995, Antonelli and O’Dell executed what purports to be a contract with McCollum. The handwritten document, which was prepared by Antonelli in collaboration with McCollum, stated:

This agreement between Glenn McCollum and Antonelli’s Restaurant Inc. is borrowing [sic] the sum of twenty five thousand dollars from Glenn McCollum.
Payment agreement between parties is monthly payment of 650.00 per month starting with the first payment due Jan. 1, 1996 for the total payments of 48 months for total amount of thirty one thousand and two hundred dollars.
Antonelli’s Inc is giving a 6 month option for Glenn McCol-lum to come in as a full partner starting date Jan. 1, 1996 expiring July 1, 1996 for the total sum fee of one hundred and twenty five thousand dollars paid into Antonelli’s corp. as Glenn McCollum options if during 6 month grace period expires Glenn McCollum has the option to refuse partnership and Antonelli will continue to make payments to 48 month contract.
Glenn McCollum [signature]
Bob O’Dell [signature]
Basile Antonelli [signature]

On the bottom right of the document was a corporate seal for Anto-nelli’s, Inc.

O’Dell deposited the $25,000 check into the business checking account. The restaurant failed, and McCollum was not repaid.

During the bench trial, the parties offered different accounts as to whom the loan was made. O’Dell testified that the loan was to Antonelli, individually. McCollum, on the other hand, stated that he loaned the money to both O’Dell and Antonelli for use by the business. Antonelli agreed with McCollum, testifying that the loan was a business loan rather than a personal loan. According to Antonelli, he thought the business had been incorporated when he signed the contract.

The trial court found in favor of O’Dell. In its order, the court noted that the contract, which appeared to be between McCollum and Antonelli’s Restaurant, Inc., did not specify that O’Dell agreed to borrow or repay the money. The court further found that O’Dell

testified he signed the document only in a corporate officer capacity. There is a corporate seal for “Antonelli’s Inc.” embossed on the right bottom corner of the document, supporting [O’Dell’s] assertion. [O’Dell] testified that he had paid an attorney to incorporate the business and believed it was incorporated at the time he signed the document, although he learned later the attorney had failed to perform the incorporation.

Finally, the trial court noted O’Dell’s trial testimony that he had put more money into the business than his partner, Antonelli, and that the loan was Antonelli’s contribution to support the business. For these reasons, the trial court concluded that McCollum had “not met his burden of proving by a preponderance of the evidence that [O’Dell] was obligated for this loan.”

1. In his first enumeration of error, McCollum contends that the trial court erred in its factual findings. Specifically, McCollum argues that the trial court erred in finding that O’Dell (1) believed that the business had been incorporated when he signed the contract; and (2) signed the contract only in his capacity as a corporate officer. We agree.

Following a bench trial, we defer to the trial court’s factual findings unless they are clearly erroneous. We will not disturb those findings if there is any evidence to sustain them. Here, there is no evidence supporting the trial court’s finding that O’Dell thought the business had been incorporated when he signed the contract. To the contrary, O’Dell testified unequivocally that the business was never incorporated and that he knew, at the time he signed the contract, that the business was operating as a partnership. As O’Dell knew no corporation existed, he cannot be said to have signed the contract in his corporate capacity. Accordingly, the trial court erred in this regard.

2. In his second enumeration of error, McCollum asserts that the trial court erred in concluding that, under the contract, O’Dell was not personally liable for repayment of the loan. “An issue of contract construction is at the outset a question of law for the court.” The first step is to look to the four corners of the instrument to determine the meaning of the agreement from the language employed. If the contract language is ambiguous, however, then the court must apply the applicable rules of construction. “The cardinal rule of contract construction is to ascertain the intention of the parties.” If, after applying the rules of construction, the language remains ambiguous, then the finder of fact must resolve the ambiguity.

Here, the inexpertly drafted contract is ambiguous in at least two respects. First, the contract is ambiguous regarding the nature of the business entity. Although the contract refers to the entity as “Antonelli’s Restaurant Inc.,” “Antonelli’s Inc.,” and “Antonelli’s corp.,” the contract also contains a clause granting McCollum an option to become a “full partner” and refers to the business as a “partnership.”

Because the nature of the business entity is ambiguous, we turn to the rules of contract construction and attempt to ascertain the intention of the parties by reading the contract as a whole. But the contract in this case is so poorly worded that the rules of construction are not helpful in ascertaining the intent of the parties. Thus, we must look to parol evidence. According to O’Dell’s uncontradicted testimony, the business was a partnership rather than a corporation when the contract was signed.

Equally ambiguous is to whom the loan was made. The first sentence of the purported contract states that the agreement is “between Glenn McCollum and Antonelli’s Restaurant Inc.,” which indicates that the loan was to a business. But the contract subsequently provides that, if McCollum does not exercise his option to join the business, “Antonelli will continue to make payments.” This sentence may be read to mean that the loan was to Antonelli, individually, rather than to the business.

At trial, the parties offered widely differing accounts as to who was intended to be liable for repayment of the loan. Thus, the finder of fact is entitled to choose whose version to believe. If, as Antonelli and McCollum testified, the loan was a business loan, then O’Dell would be liable because the business was a partnership and “all partners are jointly and severally liable for all debts, obligations, and liabilities of the partnership.” But if, as O’Dell testified, the parties intended that the loan was to Antonelli individually, then O’Dell would not be liable for repayment.

Decided November 18, 1999.

Jon A. Green, for appellant.

Moulton & Massey, Terry N. Massey, for appellee.

In its order, the trial court made no specific factual findings regarding the intent of the parties. Moreover, the court seemed to conclude that O’Dell signed the contract in a corporate capacity. As O’Dell knew that no corporation existed, he could not have signed the document in such capacity. Thus, the court’s judgment appears to have been based upon erroneous legal reasoning. “[T]he court’s judgment in a non-jury trial will be reversed where it is apparent that it rests on erroneous reasoning or on an erroneous legal theory.” Accordingly, the judgment of the trial court is reversed. On remand, the trial court, as the factfinder, must address whether the parties intended that the loan be made to the business or to Antonelli individually.

Judgment reversed and remanded with direction.

McMurray, P. J., and Andrews, P. J., concur.

       McCollum testified that the outstanding balance is $29,950.

        Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 643 (4) (507 SE2d 823) (1998).

       Id.

       Because McCollum did not raise the issue of O’Dell’s liability under OCGA § 14-2-204, we do not address this on appeal.

       See Don Swann Sales Corp. v. Echols, 160 Ga. App. 539, 541-542 (287 SE2d 577) (1981).

        Grier v. Brogdon, 234 Ga. App. 79, 80 (2) (505 SE2d 512) (1998).

        Terry v. State Farm &c. Ins. Co., 269 Ga. 777, 778-779 (2) (504 SE2d 194) (1998).

        Grier, supra.

       (Punctuation omitted.) Amstadter v. Liberty Healthcare Corp., 233 Ga. App. 240, 242 (1) (503 SE2d 877) (1998).

       Id.

        Bell v. Sasser, 238 Ga. App. 843, 851 (2) (520 SE2d 287) (1999).

       OCGA § 14-8-15 (a).

       See Willard v. Stewart Title Guaranty Co., 264 Ga. 555 (448 SE2d 696) (1994) (partner not liable for note even though note executed “ ‘in furtherance of the goals of [the] partnership’ ”).

        CRS Sirrine v. Dravo Corp., 213 Ga. App. 710, 721 (4) (445 SE2d 782) (1994).


author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A99A1600.
    DEPARTMENT OF HUMAN RESOURCES v. PINTER.
    (525 SE2d 715)
   Barnes, Judge.

The Georgia Department of Human Resources (“DHR”), on behalf of Angela Pinter, appeals the superior court’s dismissal of DHR’s complaint for contempt filed to collect $22,345 in child support arrears as ordered by an Indiana court. DHR contends that the trial court erred by failing to extend full faith and credit to a foreign child support order and erred by allowing Pinter to re-litigate the issue of paternity. We agree and reverse.

Ivis E. Pinter and his ex-wife were married in July 1977, the child was born in December 1977, and they divorced in Indiana in June 1978. The couple remained together only three months after the child was born. In addition to dissolving the marriage and dividing the property, the divorce decree required Pinter to pay $30 per week in child support. Subsequently, Pinter moved to Florida where he lived with his ex-wife for a time. In 1992, after a conversation with the child, he became suspicious that he was actually not the father of the child. Consequently, Pinter and the child had blood tests performed, and the results of these tests excluded Pinter as the biological father of the child.

Based on these results, Pinter filed a motion in the court in Indiana challenging his obligation to pay child support. After a hearing on the issue which considered the blood tests and other evidence concerning the circumstances existing at the time of the marriage and the divorce, the court found that Pinter was not the biological father of the child and relieved him of the obligation of future child support. The court held, however, that Pinter was responsible for the child support arrears because he was estopped from contesting the previous judgments.

Upon appeals by both parties, the Court of Appeals of Indiana reversed this decision and held that Pinter was the legal father of the child and that no fraud at the time of the marriage and divorce warranted setting aside the divorce decree that required Pinter to pay child support. Subsequently, child support was increased to $65 per week, Pinter was ordered to pay $35 a week to pay off his arrearage, and he was found to be $17,340 in arrears.

After Pinter moved to Georgia, the State of Indiana on behalf of Pinter’s ex-wife obtained an order from an Indiana court asking this State to enforce the order of support and collect the arrearage, which by this time had risen to $21,435. DHR filed a complaint in Fannin County Superior Court to enforce the order, but upon Pinter’s objection, the superior court dismissed the complaint. After we granted DHR’s application for a discretionary appeal, DHR filed this appeal.

1. The outcome of this case is controlled by the federal Full Faith & Credit for Child Support Orders Act, 28 USC § 1738B, (“the Act”) and OCGA § 24-7-24. In the Act, Congress has mandated that full faith and credit be given a foreign child support order or judgment. Dept. of Human Resources v. Deason, 238 Ga. App. 853, 861 (1) (c) (520 SE2d 712) (1999) (physical precedent). Thus, neither this court nor the trial court may ignore the Act’s requirement that the courts of this State give full faith and credit to child support orders from other states that satisfy the jurisdictional due process standards of the Act. 28 USC § 1738B (c).

To satisfy these jurisdictional due process standards, the child support order must have been promulgated by a court with proper jurisdiction over the subject matter and personal jurisdiction over the parties, and the parties must have received proper notice and have had the opportunity to be heard. 28 USC § 1738B (c); Dept. of Human Resources v. Fenner, 235 Ga. App. 233 (1) (510 SE2d 534) (1998). The orders in this case clearly satisfy these standards. Pinter submitted to the jurisdiction of the Indiana court by moving to modify the original child support order, and he has raised no issue concerning lack of subject matter jurisdiction or notice.

Decided November 18, 1999.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General,

Further, the issues concerning Pinter’s paternity and whether the divorce decree was procured by fraud were litigated fully in Indiana and decided adversely to him. Compare Fenner, supra, 235 Ga. App. at 234-235. Under these circumstances, Pinter cannot re-litigate these issues. OCGA § 9-12-40; 28 USC § 1738B.

2. In view of our disposition of this case in Division 1, we need not address DHR’s other enumerations of error.

Accordingly, the trial court’s dismissal of the complaint for contempt must be reversed and the case remanded to the trial court.

Judgment reversed.

Blackburn, P. J., and Ellington, J., concur specially.

Blackburn, Presiding Judge,

concurring specially.

Although I agree with the judgment of the majority, I write separately to point out the absurdity of the present state of the law that requires a putative father to pay child support after he has scientifically proven that he is not the biological father. As I stated in Smith v. Dept. of Human Resources, 226 Ga. App. 491, 493 (487 SE2d 94) (1997), “the law should not punish a purported father for failing to insist on a paternity test when he has no reason to believe that he is not the father.” Not only has the putative father been cuckolded, the law adds injury to insult by requiring him to pay child support even after he establishes that he is not the biological father. Once non-paternity is scientifically established, courts cannot ignore such fact by relying on policies developed when no such proof was possible. To create a fiction in this matter does not make the male the biological father of the child; it simply makes him the victim of the law. It also makes an ass of the law. While the courts may preach their false policy, they lose the respect of any citizen with common sense. The legislature should address this issue.

I am authorized to state that Judge Ellington joins in this special concurrence.

Katherine S. Davis, Assistant Attorney General, for appellant.

David E. Ralston, for appellee.


text:
    A99A1612.
    SCHWAB U.S.A., INC. et al. v. PERPETUAL MACHINE COMPANY.
    (525 SE2d 719)
   Miller, Judge.

Perpetual Machine Company manufactured, assembled, and shipped carpet equipment for customers of Schwab U.S.A., Inc. (“Schwab-USA”). Because Perpetual Machine was not receiving payments, it met with representatives of Schwab Maschinenbau GmbH & Company (“Schwab-Germany”) and Schwab-USA and reached an oral settlement agreement, which provided that Perpetual Machine would reduce the indebtedness to $450,000 and forfeit all accrued and future interest. Perpetual Machine received only $22,000, paid from an account naming Schwab-USA as the account holder. Schwab-Germany refused to pay any amount to Perpetual Machine, pointing to Schwab-USA as a separate entity owing the entire amount.

Perpetual Machine sued Schwab-Germany and Schwab-USA. Following a bench trial, the trial court found that both Schwab-Ger-many and Schwab-USA entered into the settlement agreement with Perpetual Machine. Schwab-Germany and Schwab-USA appeal and request that judgment be entered in favor of Schwab-Germany. Because there is evidence supporting the trial court’s findings, we affirm.

1. Schwab-Germany argues that because there is no writing, its alleged oral guaranty of Schwab-USA’s debt would have been a promise to pay for the debt of another and therefore unenforceable under the Statute of Frauds. Schwab-Germany further denies that it agreed to pay or guarantee any Schwab-USA debt.

B. J. Howard Corp. v. Skinner, Wilson & Strickland explained that not all guaranties of others’ debts fall within the Statute of Frauds:

For a promise to pay the debt of another to be within the Statute of Frauds it must be one which is collateral or secondary and is merely superadded to that of another. A promise to pay the debt of another which is an original undertaking by which the promisor becomes primarily liable is not within the Statute of Frauds. If the agreement of the third party guarantor is an original undertaking[,] that is, one furthering his own interests rather than underwriting the debt of another, it is not within the Statute of Frauds. Whether a promise to assume the debt of another is an original undertaking or a collateral one is a question of intent and whether the parties meant for the promisor to stand in the place of the third party.

Finding that Schwab-Germany from the onset contracted with Perpetual Machine and that the subsequent settlement agreement was an original undertaking by Schwab-Germany, the trial court concluded that the settlement agreement was not within the Statute of Frauds. Where there is any evidence to sustain the trial court’s findings, an appellate court will not disturb them.

Perpetual Machine presented testimony that it had always dealt with Schwab-Germany and that Schwab-USA was a “sales agency” for Schwab-Germany. Perpetual Machine produced a written agreement, dated June 23, 1993, wherein “[Schwab-Germany], located in Oettingen/Bayern, Germany represented by the US subsidiary [Schwab-USA] located in Dalton, GA” agreed to cooperate with Perpetual Machine, also located in Dalton. This agreement further provided that Schwab-USA would introduce and market the carpet equipment.

Assurances from Schwab-Germany’s vice-president evidenced Schwab-Germany’s indebtedness to Perpetual Machine. Wolfgang Schwab, Schwab-Germany’s president and chief executive officer, and Anton Wanner, Schwab-Germany’s vice-president, participated in the settlement negotiations that resulted in Perpetual Machine’s agreeing to continue to support and cooperate with Schwab-Germany and also to withdraw all lawsuits against Schwab-Germany. After the settlement meeting, Wanner sent a letter to Perpetual Machine’s president confirming that “we will find a way to pay back the open account to Perpetual Machine.” A second letter from Wanner a few weeks later discussed Schwab-Germany’s plan to minimize the costs of the “US-Operation” so that the savings “can start to pay Perpetual.”

Evidence showed that Perpetual Machine originally contracted with Schwab-Germany and that the settlement agreement reduced Schwab-Germany’s own debt. In addition, pursuant to the settlement agreement, Schwab-Germany continued to receive Perpetual Machine’s support. Because some evidence supported the trial court’s finding that the settlement agreement furthered Schwab-Germany’s own interests, we affirm the trial court’s judgment.

Decided November 18, 1999.

R. Leslie Waycaster, Jr., for appellants.

Kinney, Kemp, Sponcler, Joiner & Tharpe, L. Hugh Kemp, for appellee.

2. The ruling in Division 1 renders the remaining enumeration moot.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       See OCGA § 13-5-30.

       172 Ga. App. 180 (1) (322 SE2d 306) (1984).

       (Citations and punctuation omitted.) Id. at 180-181 (1).

        Williamscraft Dev. v. Vulcan Materials Co., 196 Ga. App. 703, 704 (2) (397 SE2d 122) (1990).


author: McMurray, Presiding Judge.

text:
    A99A1878, A99A2022.
    JOHNSON v. ORIENTAL WEAVERS RUG MANUFACTURING COMPANY, INC. et al. (two cases).
    (525 SE2d 738)
   McMurray, Presiding Judge.

Robert O. Johnson was hired to manage certain real property owned by Smith Foster. After Johnson brokered the sale of a parcel of this real property to Oriental Weavers Rug Manufacturing Company, Inc. (“Oriental”), he filed an action against Foster and Oriental to recover a commission for his services. Because Johnson is not a licensed real estate broker, the trial court denied Johnson’s motion for partial summary judgment and granted Foster’s and Oriental’s motions for summary judgment. These appeals followed. Held:

A person doing business in Georgia without the requisite real estate license has no standing to sue for commissions allegedly earned. OCGA § 43-40-24 (a). See Mathews v. Greiner, 130 Ga. App. 817, 818-819 (1) (204 SE2d 749). And because this rule is based on public policy and purpose, it is immaterial that its operation may benefit one who may have deceitfully induced the performance of another by agreeing to pay such a commission. Krizan v. Newman & Co., 153 Ga. App. 337, 339 (3) (265 SE2d 68), aff’d, 246 Ga. 214, 216 (271 SE2d 135). It is therefore immaterial in the case sub judice that Foster and Oriental failed to honor a provision in the parties’ real estate sales contract which provided that Johnson would receive a five percent commission for his efforts. See Unifund Gen. v. Orr, 191 Ga. App. 836, 838 (3) (383 SE2d 199). The only remaining issue, then, is whether Johnson can sue for a broker’s commission based on OCGA § 43-40-29 (a) (8)’s exception that Georgia’s real estate licen-sure law does not apply to “[a]ny person employed on a full-time basis by the owner of property for the purpose of providing property management services or community association management services, selling, buying, leasing, managing, auctioning, or otherwise dealing with such property.” OCGA § 43-40-29 (a) (8) (formerly Ga. Code Ann. § 84-1403).

Decided November 18, 1999

John T. Longino, for appellant.

Although OCGA § 43-40-29 (a) (8) appears to create a broad exception, this Code subsection cannot be a basis for circumventing the rule that only licensed brokers have standing to sue for a commission. Berchenko v. Fulton Fed. Sav. & Loan Assn., 244 Ga. 733, 734 (2) (261 SE2d 643). To this issue, the Supreme Court of Georgia specifically held in Berchenko that OCGA § 43-40-29 (a) (8) does not apply to any full-time employee who receives or intends to receive a fee, commission or other valuable consideration for brokerage services. The Supreme Court explained in Berchenko that the exception was enacted to prevent technical violations of the law by those whose employment is incidental to real estate transactions — such as real estate attorneys. Id. at 234 (2).

Although, in the case sub judice, Johnson claims to qualify under OCGA § 43-40-29 (a) (8)’s exception based on proof that he was Foster’s full-time operations or property manager, Johnson’s claim for a fee is not based on services he provided which were incidental to the real estate sales transaction at issue. Johnson’s claim is based wholly on his expectation of a commission for providing real estate brokerage services as defined under OCGA § 43-40-1 (2). This expectation is what disqualifies Johnson’s action for a broker commission under the Supreme Court of Georgia’s holding in Berchenko v. Fulton Fed. Sav. & Loan Assn., 244 Ga. at 734 (2), supra. This Court’s holding in Piedmont Engineering &c. Corp. v. Balcor Partners-84 II, 196 Ga. App. 486, 492 (3) (396 SE2d 279), is not based on a claim for a broker’s sales commission as is the circumstance in the case sub judice. Piedmont Engineering is thus distinguishable upon the facts and not controlling in the case sub judice.

The trial court did not err in granting Foster’s and Oriental’s motions for summary judgment.

Judgments affirmed.

Johnson, C. J., and Phipps, J., concur.

Grant, Konvalinka & Harrison, H. Wayne Grant, David C. Higney, Minor, Bell & Neal, James H. Bisson III, for appellees.

       While the evidence does not undisputedly show that Johnson was a full-time employee or that he was even Foster’s employee (Johnson was actually employed by corporate entities owned and operated by Foster), we accept Johnson’s construction of the facts because, as a party responding to motions for summary judgment, he must be given the benefit of all reasonable doubts and the construction of the evidence and all inferences and conclusions therefrom. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).


author: Johnson, Chief Judge.

text:
    A99A2122.
    In re ESTATE OF WILLIAMS.
    (525 SE2d 742)
   Johnson, Chief Judge.

Arthur Williams and Collis Williams were married and had two children. In 1994, Collis Williams filed for divorce. The divorce was granted in June 1996, and Arthur Williams was ordered to pay child support to his former wife. In October 1996, Collis Williams filed a contempt action alleging that her former husband had failed to make the child support payments.

In November 1996, Arthur Williams’ daughter from a prior relationship died, and soon thereafter Collis Williams also died. Arthur Williams was appointed as the administrator of his former wife’s estate. He used money from her estate to pay for the funeral of his daughter from the prior relationship.

Collis Williams’ sister, Doris Strickland, petitioned to have Arthur Williams removed as the administrator of the estate because he had improperly used estate funds to pay for his daughter’s funeral and he is still in arrears on his child support payments. The probate court granted the petition, ordering that Williams be removed as administrator because he had mismanaged the estate funds by using them to pay for his daughter’s funeral and because he has a conflict of interest due to his indebtedness to the estate for the past due child support. Williams appeals from the order removing him as administrator.

1. Williams claims the probate court erred in failing to consider evidence that he is not in arrears on his child support obligations. While the evidence in the record cited by Williams appears to show that he made some child support payments, it is not clear from that evidence that he made all the required payments. Thus, Williams has failed to carry his burden on appeal of affirmatively proving by the record that the probate court erred in finding that he still owes some child support payments to the estate.

Moreover, a ruling right for any reason must be affirmed. So even if the probate court erred in finding a child support arrearage, the court’s other finding that Williams had mismanaged the estate funds by using them to pay for his daughter’s funeral provided an independent basis for the court to exercise its discretion to remove him as administrator. The probate court has broad discretionary powers to remove an estate administrator upon a showing of waste, mismanagement or other unfitness for the trust reposed in him. Thus, regardless of whether there is a child support arrearage, the order of removal must be affirmed on the independent ground of mismanagement of the estate.

Decided November 18, 1999.

Antonio L. Thomas, for appellant.

Davis & Stringer, Thomas O. Davis, Charles H. Edwards, for appellee.

2. Williams complains that the removal order should be reversed because it refers to a Code section that he has been unable to find in the Official Code of Georgia. The complaint is without merit because the order correctly cites OCGA § 53-7-55, which provides that a probate court has the discretionary power to revoke the letters of an estate representative for good cause.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       See generally Myers v. Wynn, 201 Ga. App. 764, 765 (412 SE2d 581) (1991).

        Brown v. Walton Elec. Membership Corp., 238 Ga. App. 347, 350 (2) (518 SE2d 727) (1999).

        Nesmith v. Pierce, 226 Ga. App. 851, 852 (1) (487 SE2d 687) (1997).

       See generally Eichelkraut v. Camp, 236 Ga. App. 721, 726 (2) (513 SE2d 267) (1999).


text:
    A99A2409.
    TRAINA ENTERPRISES, INC. v. RACETRAC PETROLEUM, INC.
    (525 SE2d 712)
   Johnson, Chief Judge.

The four elements to any tort action are a duty, a breach of that duty, causation and damages. A third party does not owe a duty to an employer to refrain from injuring the employer’s employee. As part of an employee conference held at a state park, RaceTrac Petroleum, Inc. rented a pontoon boat from Traina Enterprises, Inc. Karen Ringrose, a RaceTrac employee, was crossing a gangway to get to the boat when the gangway collapsed, fatally injuring her. Does RaceTrac have a tort cause of action against Traina for damages it allegedly suffered because it cancelled the conference after Ringrose was injured? We hold that RaceTrac does not have a tort cause of action because, even though Traina owed Ringrose a duty not to injure her, Traina owed no such duty to RaceTrac to refrain from injuring its employee. We therefore reverse the trial court’s denial of Traina’s motion for summary judgment on RaceTrac’s negligence claims. But because there are genuine questions of fact as to RaceTrac’s additional breach of contract claim, we affirm the denial of summary judgment on that claim.

RaceTrac organized a conference for its employees at Red Top Mountain State Park from May 8 to 10,1996. RaceTrac rented a pontoon boat from Traina for the employees to use on Lake Allatoona on the second day of the conference. At about 1:00 p.m. on May 9, a group of employees went to the dock area where the boat was moored. As they were crossing Traina’s gangway to the dock, the gangway collapsed. RaceTrac employee Ringrose was pinned between the handrails of the collapsed gangway and eventually died from her injuries. Several other employees were also injured during the incident, after which RaceTrac cancelled the rest of the conference.

Ringrose’s family sued Traina, as did several injured RaceTrac employees, and each of those cases was settled without trial. Race-Trac also sued Traina for negligence and for breach of the boat rental contract, seeking $66,426 in damages for the cost of organizing and conducting the conference. Specifically, RaceTrac claims $42,615 for employee salaries, $10,628 in travel expenses, $6,490 as miscellaneous fees paid to the park, $4,222 for lodging and meals and mileage, and $2,471 for materials.

Traina moved for summary judgment, arguing, among other things, that it cannot be held liable in tort because it owed no duty to RaceTrac and that it cannot be held liable for the alleged breach of contract because the claimed damages are too remote. The trial court denied the motion as to both the tort and contract claims. Traina then applied to this court for interlocutory review of the rulings, and we granted the application.

1. In denying Traina’s motion for summary judgment on Race-Trac’s tort claim, the trial court found that Traina could be held liable in tort if it negligently breached its boat rental contract with RaceTrac. The finding is erroneous.

A defendant’s mere negligent performance of a contractual duty does not create a tort cause of action; rather, a defendant’s breach of a contract may give rise to a tort cause of action only if the defendant has also breached an independent duty created by statute or common law. A third party, like Traina, owes no independent legal duty to an employer, such as RaceTrac, not to injure the employer’s employee. So even if Traina negligently breached its boat rental contract with RaceTrac, it owed no other independent duty to RaceTrac to avoid injuring Ringrose. Absent a legal duty outside the contract, there can be no action in tort based merely on Traina’s alleged contract breach.

The trial court’s erroneous denial of Traina’s motion for summary judgment as to RaceTrac’s tort claim must therefore be reversed.

2. As to RaceTrac’s breach of contract theory, the trial court made the following findings:

RaceTrac may not recover under a breach of contract theory for the cost of the entire conference. At the time the agreement was entered into, neither party contemplated the result of the accident which occurred. By agreeing to rent a boat for V2 day for $79, Traina did not contemplate reimbursing RaceTrac for the $66,000 conference if it failed to meet its contractual obligations. RaceTrac may, however, recover damages directly stemming from the alleged breach of contract. These damages would include additional expenses incurred due to the cancellation of the remainder of the conference and recovery of all amounts paid to Traina under the contract.

The damages which may be recovered for a breach of contract are those that arise naturally and according to the usual course of things from the breach and those which the contracting parties contemplated as the probable result of a breach.

In the instant case, the trial court correctly ruled that the employee salaries and conference costs of $66,426 may not be recovered as damages for the claimed breach of the boat rental contract because such expenses did not arise naturally from the breach and were not contemplated by Traina and RaceTrac as the probable result of a breach. Instead of being the result of the alleged contract breach, those salaries and conference costs are expenses that Race-Trac would have had to bear regardless of whether or not there was a breach of the pontoon rental contract.

But, as the trial court correctly found, money paid by RaceTrac under the contract and additional expenses naturally arising from the alleged breach may be recoverable. Because there are genuine issues of material fact as to whether RaceTrac has recoverable damages for a breach of the contract, the trial court did not err in denying Traina’s motion for summary judgment on the breach of contract claim. That portion of the court’s judgment is thus affirmed.

Decided November 18, 1999

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Austin E. Carter, for appellant.

Newman, Sapp & Davis, Alan L. Newman, Allen E. Lockerman TV, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Phipps, J., concur.

       OCGA § 51-1-1; Millan v. Residence Inn &c., 226 Ga. App. 826, 828 (487 SE2d 431) (1997).

        Unique Paint Co. v. Wm. F. Newman Co., 201 Ga. App. 463 (411 SE2d 352) (1991); North Ga. Elec. Membership Corp. v. Thomason &c. Co., 157 Ga. App. 719, 720 (2) (278 SE2d 433) (1981).

        Constr. Lender v. Sutter, 228 Ga. App. 405, 409 (2) (491 SE2d 853) (1997); Walton Elec. Membership Corp. v. Snyder, 226 Ga. App. 673, 678 (2) (487 SE2d 613) (1997).

       See Unique Paint, supra; North Ga. Elec. Membership, supra.

       OCGA§ 13-6-2.


text:
    A99A2432.
    GROCE v. THE STATE.
    (525 SE2d 430)
   Johnson, Chief Judge.

A jury found Jerry Groce guilty of felony obstruction of a police officer. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that the Columbus police department was contacted by sheriff’s deputies in a fugitive unit. They had several outstanding warrants for Groce’s arrest and had received information that he was staying with his mother in Columbus. The deputies briefed the Columbus police officers, who went to the mother’s house. The mother was cooperative, told the officers that Groce was staying with her and driving her car, gave the officers a description of her car and her tag number, and showed the officers a picture of Groce.

A week later, one of the officers was driving his regular patrol beat and noticed a car matching the description given by the mother at a traffic light. The officer observed that the driver of the car resembled the man in the picture shown to him at the mother’s house. The officer followed Groce and called for backup. Groce made a few turns, driving in the direction of a trailer park which the officer knew was a common place for suspects to flee. When Groce turned into the trailer park, the officer turned on his blue lights. Groce stopped and got out of his car. The officer asked for Groce’s license, and Groce reached inside the window of his car door. Concerned because he could not see Groce’s hands, the officer told Groce to forget the license and put his hands on top of the car. Groce did this.

The officer stepped behind Groce and placed his hand on Groce’s back to guide him closer to the car. At this point, Groce turned around, balled up his fist, and struck the officer in the face. The officer fell to one knee, and Groce ran into the trailer park. Later that day, Groce was apprehended. At trial, Groce admitted he turned and ran from the officer, but denied striking the officer. Groce admitted there “may have been” a knife in the car and that he went to the trailer park to get away from the officer.

Groce was tried by a jury and appeals from the judgment of conviction entered upon the jury’s verdict of guilty. For the reasons which follow, we affirm his conviction.

1. Groce claims the evidence does not support the verdict because the officer was not justified in stopping him and therefore was not engaged in the lawful discharge of his duties at the time of the obstruction. However, Groce’s counsel stipulated at trial that the officer was justified in stopping Groce: “He had reason to stop Mr. Groce and to arrest him. I don’t think there’s any issue about that. We are not making an issue of that.” Accordingly, Groce has waived the opportunity to raise this issue on appeal. Moreover, it is apparent that given Groce’s outstanding arrest warrants, the officer had probable cause to stop him.

2. Groce next complains that the trial judge erred in informing the jury that the Court of Appeals would correct any mistakes made during the trial. He claims the trial judge’s comments could only be construed as telling the jury they should find him guilty and let the Court of Appeals review the case. We find no error.

Prior to the opening statements and introduction of evidence, the trial judge made opening remarks to the jury, orienting the jury to the judicial system and its functions. During these remarks, the trial judge stated that if the court made a mistake, “the Court of Appeals, as it correctly should do and does, will correct this Court.” The trial judge also informed the jury that someone looks over the record if they wish and decides whether the trial judge made a mistake big enough or serious enough to affect the outcome or the fairness of the trial. In concluding, the trial judge stated, “[i]t’s not my intention to express an opinion to you about what should happen in this case one way or the other.”

Groce has waived his right to assert error because he did not object to the trial judge’s comments or move for a mistrial. Groce cannot ignore what he thinks to be an injustice, take his chance on a favorable verdict, and then complain later. Furthermore, a thorough review of the trial judge’s opening remarks in their entirety, including a look at his references to the Court of Appeals in context, show that the complained-of remarks were merely abstract references to the appellate courts. The challenged comments did not constitute a statement of opinion either as to proof or as to guilt. In addition, as the comments were made before any evidence was introduced in the case, they did not in any way express doubt as to the correctness of any specific ruling made, by the court. We also find that the comments did not suggest to the jury that their responsibility in deciding the issues of the case could be lightly discharged because of the possibility of an appeal or of consideration of the case by the appellate courts.

3. Groce contends the trial court erred in considering two exhibits for sentencing purposes. The first exhibit included four pages showing that Groce was indicted for armed robbery, kidnapping, and aggravated assault, describing the charges, and certifying that the pages were true and correct copies of documents on file. The second exhibit was a six-page document showing Groce was indicted for driving under the influence of intoxicants, possessing a controlled substance, and being an habitual violator, describing the charges, showing a nolle prosequi for one of the charges, showing final dispositions for the other charges, and certifying that the pages were true and correct copies of documents on file. According to Groce’s objection at trial, the documents were inadmissible because no signed plea of guilty to the offenses was tendered into evidence.

Pretermitting whether Groce’s objection was valid, he has failed to show that the trial judge relied on either of the exhibits in sentencing him. According to the trial judge, he did not consider anything improper and “sentenced [Groce] because of the facts of the case that [he] heard, the horrendous conduct that [Groce] exhibited by beating on this police officer.” The trial judge sentenced Groce to five years on the felony obstruction of an officer charge, a sentence permitted by statute.

In order to justify a new trial or reversal, a trial court’s ruling must be both erroneous and harmful to the defendant. Groce has failed to show that any alleged error in admitting the exhibits was harmful; thus reversal is not required.

4. Groce contends he was denied effective assistance of counsel based on the fact that his trial counsel failed to object to the trial judge’s comments referencing the Court of Appeals. Based on our finding in Division 2 that the trial judge’s comments were merely abstract references to the Court of Appeals and were not objectionable, this enumeration of error lacks merit.

Decided November 18, 1999.

J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       See Zachary v. State, 238 Ga. App. 191, 192 (2) (517 SE2d 71) (1999); Ross v. State, 231 Ga. App. 793, 801 (14) (499 SE2d 642) (1998).

        King v. State, 211 Ga. App. 12, 15 (2) (438 SE2d 93) (1993).

       See Wilson v. State, 268 Ga. 527, 529 (5) (491 SE2d 47) (1997); Walker v. State, 258 Ga. 443, 444 (3) (a) (370 SE2d 149) (1988); Hollis v. State, 215 Ga. App. 35, 39 (6) (450 SE2d 247) (1994).

       Id. at 39-40.

       See Wilson, supra; Bearden v. State, 159 Ga. App. 892, 893 (3) (285 SE2d 606) (1981).

       See Nobles v. State, 201 Ga. App. 483, 492 (24) (411 SE2d 294) (1991).

        See Kimbrough v. State, 254 Ga. 504, 506 (3) (330 SE2d 875) (1985).

       Id.

       OCGA § 16-10-24 (b).

        Potts v. State, 207 Ga. App. 863, 868 (6) (429 SE2d 526) (1993).

       See generally Howard v. State, 201 Ga. App. 164, 166 (2) (410 SE2d 782) (1991).

       See generally Key v. State, 226 Ga. App. 240, 243 (2) (485 SE2d 804) (1997).


text:
    A99A1211.
    DURHAM v. THE STATE.
    (525 SE2d 757)
   Phipps, Judge.

Vernie A. Durham, Jr. appeals his conviction by a Walker County jury of one count of rape and two counts of statutory rape. We reverse the rape conviction because the trial judge erroneously instructed the jury that “[s]exual acts directed to a child under the age of sixteen” are forcible as a matter of law. We affirm Durham’s convictions for statutory rape because we find no error relative to those convictions.

The victim, a 15-year-old girl, was living in Chattanooga, Tennessee, when she met Durham. She traveled with Durham to his sister’s house in Lafayette, Georgia, where she and Durham had sexual intercourse twice. The victim testified that she had sexual intercourse with Durham because she was afraid of him and that she went to Georgia with him because he had threatened to shoot her or to kill her father. Also she testified that she had written Durham a love letter. She gave a written statement to the police that “Vernie [Durham] did not force me to go with him or force me to do anything with him.”

1. In State v. Collins, the Supreme Court of Georgia reaffirmed its earlier decision in Drake v. State, stating, “we choose to reaffirm [Drake’s] holding that the [S]tate must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age.” The Supreme Court, in the recent case of Brewer v. State, again cites favorably to Drake, noting that “recognition of an additional presumption of force arising solely from the victim’s age in forcible rape cases would effectively eliminate the strict liability crime of statutory rape. . . .” Brewer followed the logic of Collins to hold that “force is a separate essential element which the State is required to prove to obtain a conviction for aggravated sodomy against a victim under the age of consent.”

Here, the trial court instructed the jury that “[s]exual acts directed to a child under the age of sixteen years are in law forcible and against her will.” The State admits that this is an inaccurate statement of the law under Collins. Nevertheless, the State maintains that Durham’s rape conviction should be upheld, claiming that the charge was not enumerated as error by Durham, that Collins should not be applied retroactively, and that the trial court’s charges on rape, taken as a whole, adequately informed the jury of the applicable law.

At trial, Durham excepted “to the [trial court’s] statement about the underage proving force and lack of consent on the rape charge.” Durham also complained of the charge in his motion for new trial and in his appellate brief. Durham enumerates as error the trial court’s grant of the State’s requests to charge on “the lack of necessity for proof of force and lack of consent for persons under 16 years of age.” Although the trial court did not give the specific charges enumerated as error, the basis on which Durham claims that the trial court erred in its charges is obvious from the record. Durham has sufficiently enumerated, and has not abandoned or waived, the issue of an improper jury charge on the element of force.

When this case was tried, Drake was the applicable law. Drake requires the State to “prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age.” Like this case, Drake involved accusations of both rape and statutory rape. The court granted certiorari in Collins to determine whether Drake remained good law. In Collins, the Supreme Court reaffirmed Drake and distinguished the cases that appeared to be inconsistent with it. Consequently, Drake, as affirmed in Collins and Brewer, applies here.

• The trial court’s erroneous jury instruction relieved the State of the burden of proving the essential element of force as a factual matter. The other charges did not cure the error. Therefore, we must reverse the rape conviction.

2. The only enumeration of error by Durham which arguably bears on his conviction for statutory rape is that “[t]he trial court erred in allowing into evidence proof of similar transactions without a notice prior to trial.”

Decided November 19, 1999.

Charles G. Wright, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

The trial court admitted in evidence statements by the victim of previous acts of sexual intercourse with Durham in Tennessee. Durham argues that the prosecution failed to provide notice of this testimony prior to trial in violation of Uniform Superior Court Rule 31.3 and that the trial court erred in admitting it. In Wall v. State, the Supreme Court of Georgia held that USCR 31.1 and 31.3 “should not be applied to instances of prior difficulties between the defendant and the victim.” The admission of the “prior difficulty” testimony was accompanied by a limiting jury instruction. We find no error by the trial court, and Durham’s convictions on the statutory rape counts are affirmed.

Because we reverse Durham’s rape conviction, his enumerations of error 1 through 4 and 7, are moot.

Judgment affirmed in part and reversed in part.

Blackburn, P. J., and Barnes, J., concur.

       270 Ga. 42, 43 (508 SE2d 390) (1998).

       239 Ga. 232 (1) (236 SE2d 748) (1977).

       271 Ga. 605, 606 (523 SE2d 18) (1999).

       Id.

        Collins, supra, 270 Ga. at 43.

       269 Ga. 506, 507 (2) (500 SE2d 904) (1998).

       Id. at 509 (2).