Heath v. L.E. Schwartz & Sons, Inc.
| Decision Date | 12 February 1992 |
| Docket Number | No. A91A2089,A91A2089 |
| Citation | 416 S.E.2d 113,203 Ga.App. 91 |
| Parties | HEATH v. L.E. SCHWARTZ & SONS, INC., et al. |
| Court | Georgia Court of Appeals |
Reynolds & McArthur, Charles M. Cork, III, Macon, for appellant.
Jones, Cork & Miller, Rufus D. Sams III, Thomas W. Joyce, Macon, for appellees.
Heath received a jury verdict against L.E. Schwartz & Sons, Inc. (Schwartz) in the amount of $516,961.41 for personal injuries incurred in an automobile accident. Heath appealed and this Court affirmed the judgment in Heath v. L.E. Schwartz & Sons, 199 Ga.App. 452, 405 S.E.2d 290 (1991). After the remittitur from this Court was filed in the trial court, Heath's motion for postjudgment interest on the award was denied by the trial court, and he filed this direct appeal.
1. First, we conclude that the trial court's order denying postjudgment interest was a final order clarifying an earlier final judgment and is directly appealable. See Nodvin v. West, 197 Ga.App. 92, 93, 397 S.E.2d 581 (1990).
2. The jury award was made the judgment of the trial court on September 1, 1989, which started the accrual of interest thereon at the rate of 12 percent per year. West v. Jamison, 182 Ga.App. 565, 569, 356 S.E.2d 659 (1987); OCGA § 7-4-12. On November 22, 1989, Schwartz's attorneys hand-delivered a certified check in the amount of $530,898.13, along with a letter, to counsel for Heath. The check was made payable to Heath, his attorney, Blue Cross/Blue Shield Medicare and Medical Center of Central Georgia. The accompanying letter stated that the check was tendered in full satisfaction of the judgment in the case and all accrued interest through the date of the letter; that the tender was unconditional and continuing; and that Schwartz was ready, willing and able to pay the full amount of the debt as evidenced by the enclosed check. On December 1, 1989, counsel for Heath returned the check with a letter stating that "[w]e are not in a position to accept your check for a number of reasons, mainly because we are appealing the case." Thereafter, the record reflects that subsequent to the decision of this Court affirming the judgment, the trial court entered an order on July 2, 1991 denying Heath's motion for postjudgment interest and finding that the November 22, 1989 tender was unconditional and continuing, and that Schwartz had at all times been ready, willing and able to pay the amount tendered. Heath's motion was not made a part of the record on appeal, nor is there any transcript or other evidence showing the substance of the motion or any proceedings in the trial court.
On appeal, Heath claims the trial court erred by determining that the tender stopped the accrual of postjudgment interest because the tender was neither continuing nor unconditional and was otherwise invalid. Although he asserts a number of arguments in support of the claimed error, this Court will address only those issues which the record reflects were properly raised in the trial court. Nodvin, supra 197 Ga.App. at 95, 397 S.E.2d 581. The burden is on the appellant to show error by the record. Gillespie v. Gillespie, 259 Ga. 838, 388 S.E.2d 688 (1990). The only argument which the record arguably shows was raised in the trial court in support of Heath's motion is the claim that there was no unconditional tender because acceptance of the money in satisfaction of the judgment was conditioned on a waiver of Heath's right to appeal the judgment.
To stop the running of interest on the judgment, Schwartz was required to make a valid tender of payment on the debt. Vitner v. Funk, 182 Ga.App. 39, 44, 354 S.E.2d 666 (1987). "A valid unconditional continuous tender stops the running of interest." Corr v. Aaron Rents, Inc., 136 Ga.App. 643, 644, 222 S.E.2d 150 (1975); Fortson v. Strickland, 23 Ga.App. 607, 608, 99 S.E. 147 (1919). 1 Bank of LaFayette v. Giles, 208 Ga....
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...be attached to a valid tender are either a receipt for full payment or a surrender of the obligation." Heath v. L.E. Schwartz & Sons, Inc. , 203 Ga.App. 91, 416 S.E.2d 113, 114-15 (1992) ; See also Stockton Theatres, Inc. v. Palermo , 179 Cal.App.2d 323, 3 Cal.Rptr. 767, 768 (1960) (tender ......
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