Hines v. Good Housekeeping Shop, 62523

• Decision Date: 07 January 1982
• Docket Number: No. 62523,62523
• Citation: 291 S.E.2d 238,161 Ga.App. 318
• Parties: HINES v. GOOD HOUSEKEEPING SHOP.
• Court: Georgia Court of Appeals

Page 238

291 S.E.2d 238

161 Ga.App. 318

HINES v. GOOD HOUSEKEEPING SHOP.

No. 62523.

Court of Appeals of Georgia.

Jan. 7, 1982.

Rehearings Denied Feb. 18, 1982.

Certiorari Denied April 8, 1982.

Ralph S. Goldberg, Atlanta, for appellant.

John Genins, Atlanta, for appellee.

CARLEY, Judge.

This case makes its third appearance before this court. The instant appeal is from the judgment entered on the verdict rendered at the trial necessitated by the decision in Good Housekeeping Shops v. Hines, 150 Ga.App. 240, 257 S.E.2d 205 (1979). The verdict found in favor of plaintiff-appellee Good Housekeeping Shop and the judgment entered thereon was in an amount reduced by defendant-appellant's recovery on her Truth In Lending counterclaim. Good Housekeeping Shop v. Hines, 146 Ga.App. 713, 247 S.E.2d 142 (1978), overruled on other grounds, First Citizens Bank &c. Co. v. Owings, 151 Ga.App. 389, 259 S.E.2d 747 (1979).

1. It was not error to allow appellee to amend its complaint to allege its corporate character. " 'Where the name does not import a legal entity, but in fact it is a corporation, such defect may be cured by an amendment alleging the corporate character. [Cit.]' [Cit.]" Russell v. O'Donnell, 132 Ga.App. 294, 296, 208 S.E.2d 107 (1974).

2. Before trial, appellee had filed a subpoena to require appellant's production of certain documentary evidence at trial. It was not error to deny appellant's motion to quash this subpoena, which was made orally and during trial. Code Ann. § 38-801(b)(1) provides that a subpoena for production of documentary evidence may be quashed, "upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith ..." (Emphasis supplied.) Nor will appellant now be heard to complain that the "irrelevant" subpoena was itself introduced into evidence, there being no sufficient objection raised at trial when it was offered. See Ball v. State, 145 Ga.App. 254, 243 S.E.2d 672 (1970). Nor can appellant now predicate an enumeration of error upon the trial court's giving of a charge on Code Ann. § 38-119, no objection having been made below. Code Ann. § 70-207(a).

3. It is urged that the trial court erroneously allowed appellee to cross-examine appellant concerning her conduct "subsequent to the signing of the contract in that such evidence was irrelevant."

We have considered the instances in which appellant contends that "irrelevant" evidence was admitted over objection. It appears that the evidence was apparently "relevant" to appellee's fraud count and the issue of appellant's "bad faith." " 'While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, the defendant knows that the future event will not take place.' [Cits.]" McCravy v. McCravy, 244 Ga. 336, 337, 260 S.E.2d 52 (1979). With regard to a party's "guilty knowledge," "[t]he circumstances, the time, the secrecy, all the transactions before, at the time and afterwards, may be brought to bear upon what was the knowledge ..." Birdsong v. State, 120 Ga. 850, 853, 48 S.E. 329 (1904).

In the instant case appellant testified that at the time she entered into the contract she "had intentions of paying [appellee]--I just couldn't get a job." It is apparent the questioning concerning appellant's conduct "subsequent to the signing of the contract" was part of a thorough and sifting cross-examination concerning her "intentions" of paying appellee. Under the circumstances we find no reversible error in permitting appellant to be cross-examined concerning her conduct subsequent to entering into the contract with appellee.

4. Appellant enumerates as error the admission into evidence over objection "as just being irrelevant" of certain documentary evidence. " ' "An objection (to evidence) on the sole ground that it is irrelevant is not such an objection as would be reversible error to overrule." (Cits.)' [Cit.]" Housing Authority of Atlanta v. Starcher, 149 Ga.App. 402(2), 254 S.E.2d 515 (1979).

5. It was not error to admit four ledger cards into evidence when appellee's witness testified that they were kept "[i]n the normal course of business under my direction." See generally F. N. Roberts Corp. v. Southern Bell Tel. &c. Co., 132 Ga.App. 800, 801(1), 209 S.E.2d 138 (1974). " 'It is not necessary that a witness identifying business records under Code Ann. § 38-711 have personal knowledge of the correctness of the records or have actually made the entries himself.' [Cit.]" Whittington v. State, 155 Ga.App. 667(2), 272 S.E.2d 532 (1980).

6. Appellant next asserts that the verdict and judgment are erroneous because "[t]here was no evidence showing a bona fide error defense to violations of the Michigan Retail Installment Contract [Act]." Appellant had pled the Michigan Act as a defense to the action, apparently relying upon the following provision: "Any seller who enters into any contract or agreement which does not comply with the provisions of this act or who violates any provision of this act except as a result of accidental or bona fide error is barred from the recovery of any time price differential, any official fees, delinquency or collection charge, attorney fees or court costs and the buyer shall be entitled to recover his reasonable attorney fees and court costs from the seller or his assigns ..." Michigan Statutes Ann. § 19.416 [M.C.L.A. § 445.141]. See Good Housekeeping Shops, 150 Ga.App. at 243(3), 257 S.E.2d 205 supra. Thus, in this enumeration of error, appellant apparently contends that she produced evidence of appellee's violation of the Act and that appellee produced no evidence of its "accidental or bona fide error" defense so as to recover any amount other than the principal balance due.

Appellant first asserts that appellee violated the Michigan Act when it "accelerated" the entire unpaid balance due without rebating unearned interest. See Reese v. Termplan, 125 Ga.App. 473, 475(2), 188 S.E.2d 177 (1972) (interpreting analogous Georgia law). However, the contracts did not contain an "acceleration clause." Therefore, even if appellee in fact amended its complaint so as to seek the entire unpaid balance due under the contracts before all the installments were in fact owed (and it is unclear from the record that this occurred), it is apparent that this does not demonstrate a decision on appellee's part to "accelerate" the indebtedness but, at most, an accidental or erroneous conclusion that a cause of action on the entire unpaid indebtedness was mature at the time of the amendment. See generally Nickerson v. Candler Bldg., 156 Ga.App. 396, 399(5), 274 S.E.2d 582 (1980). It is clear that appellee did amend its complaint a second time, in October of 1978, to seek a recovery of the entire unpaid indebtedness at which point appellant was clearly in default of the entire unpaid balance. Accordingly, we cannot hold that it was error to enter judgment for appellee in the full amount of appellant's unpaid indebtedness because of its "acceleration" by appellee. Compare Nickerson, 156 Ga.App. 399(5), 274 S.E.2d 582, supra.

With regard to appellant's remaining assertions concerning appellee's "violations" of the Michigan Act, we have studied the record and conclude that, even assuming that appellant's evidence demonstrated "violations" of the Act there was likewise sufficient evidence concerning appellee's "accidental or bona fide error" defense to authorize submission of the issue to the jury and to support the verdict for appellee in the full amount of appellant's unpaid indebtedness. We find this enumeration of error to be meritless.

7. Since the evidence supports the verdict in favor of appellee in the full amount of the unpaid indebtedness, it was not error to enter judgment on the verdict finding appellant was not entitled to court costs under the provisions of the Michigan Act quoted in Division 6 above.

8. Appellee originally brought suit to recover the amount of the unpaid indebtedness due under its installment contracts with appellant and "bad faith" attorney fees. Subsequently appellee amended its complaint to allege that it had been fraudulently induced into entering into the contracts. The jury returned a verdict purporting to find for appellee on the contract count and also on the fraud count. The trial court, in construing the verdict, found that the jury had awarded appellee $1,823.24 plus interest and $1,000 in attorney fees on the contract count. In addition, the trial court determined that the jury had awarded tort damages of $1,000 in attorney fees for fraud and $1,000 in punitive damages. The trial court deducted the $874.40 awarded to appellant on her Truth In Lending Act (TILA) counterclaim from the $1,823.24 awarded appellee on the contracts and deducted $1,092 in TILA attorney fees awarded to appellant by the court (see Good Housekeeping Shop, 146 Ga.App. 713, 247 S.E.2d 142, supra), from the combined $2,000 attorney fees awarded to appellee and entered the following judgment: "[A]ll of the claims are combined herein so that this Final Judgment adjudicates all the claims and rights of the parties and Judgment [is] entered in favor of [appellee] against [appellant] in the amount of $948.84 principal, $146.26 interest, $908.00 attorney fees and $1,000 punitive damages ..., and only one fi. fa. be issued, that one to [appellee] as aforesaid."

Appellant enumerates as error the entry of the aforesaid judgment on the verdict. As discussed in Division 6 above, the $1,823.24 verdict on the contracts was supported by the evidence. On appeal, appellant does not assert that the verdict on the fraud count was without evidence to support it. What she does contend, however, is that appellee should have elected which verdict--the one based upon contract or the one sounding in fraud--on which it wished to have judgment entered and that it was error to...