Marshall v. Fulton Nat. Bank

• Decision Date: 25 January 1980
• Docket Number: Nos. 57607,57746,s. 57607
• Citation: 262 S.E.2d 448,152 Ga.App. 121
• Court: Georgia Court of Appeals
• Parties: MARSHALL v. FULTON NATIONAL BANK. FULTON NATIONAL BANK v. MARSHALL.

Page 448

262 S.E.2d 448

152 Ga.App. 121

MARSHALL v. FULTON NATIONAL BANK.

FULTON NATIONAL BANK v. MARSHALL.

Nos. 57607, 57746.

Court of Appeals of Georgia.

Submitted April 3, 1979.

Decided Sept. 19, 1979.

Rehearing Denied Oct. 31, 1979.

Certiorari Granted Jan. 25, 1980.

Richard D. Ellenberg, Atlanta, for appellant.

W. Stanley Blackburn, Marion H. Allen, III, Thomas H. Edwards, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This is the second appearance before this court of this action for conversion of an automobile. The history of this case is adequately stated in the prior decision, Marshall v. Fulton Nat. Bank, 145 Ga.App. 190, 243 S.E.2d 266. Since the earlier appeal the case has been tried before a jury which returned a verdict in favor of defendant Fulton National Bank on plaintiff Roland Marshall's claim and a verdict in favor of the plaintiff on defendant's counterclaim, and made no monetary award to either party. From a judgment entered pursuant to the verdict plaintiff appeals, and defendant cross appeals. Held :

1. Plaintiff, contending that he is entitled to recover all cost of the prior appeal, enumerates as error the order of the trial court quashing a fi. fa. for court cost. The sum in controversy is the amount paid the clerk of the trial court for preparing and transmitting the record to the appellate court pursuant to Code Ann. § 24-2729 (Ga.L.1963, p. 368). Code § 6-1704 provides that the appellant's attorney is responsible for cost in the appellate court, but if there is a judgment of reversal, appellant is entitled to judgment for the amount of such cost.

This is not the cost of preparing a transcript paid to the court reporter. In Barnett v. Thomas, 129 Ga.App. 583, 584, 200 S.E.2d 327, this court held that such cost includes the sum paid for preparation and transmittal of the record by the clerk of the trial court as well as the fee paid the court reporter for preparation of the transcript. However, in Stone Mtn. Memorial Assoc. v. Stone Mtn. Scenic R., Inc., 232 Ga. 92, 93(2), 205 S.E.2d 293, the Supreme Court held that the cost of having a transcript prepared by the court reporter is an "expense of appeal" but not a "cost of appeal." That decision did not address the issue as to the costs paid the clerk of the trial court for preparation and transmittal of the transcript to the appellate court. Therefore, the language disapproving of the opinion in Barnett v. Thomas, 129 Ga.App. 583, 200 S.E.2d 327, supra, must be considered dicta insofar as the opinion relates to the sum paid the clerk of the trial court as costs for preparation and transmittal of the record; if in fact it could be held that this portion of Barnett v. Thomas, 129 Ga.App. 583, 584, 200 S.E.2d 327, supra, was disapproved by the Supreme Court.

Under the circumstances of the case sub judice, the trial court erred in quashing the fi. fa. for court costs involved in obtaining a successful revocation and reversal of the trial court in Marshall v. Fulton Nat. Bank, 145 Ga.App. 190, 243 S.E.2d 266, supra. This enumeration of error is therefore meritorious.

2. Prior to the earlier appeal in this case the parties entered into a stipulation as to the issues to be determined in this action. This stipulation of issues was incorporated by reference in the pretrial order entered by the trial court. After the prior appeal of the case plaintiff filed an amended complaint and later filed a motion for leave to file an amended complaint with the same amended complaint attached. The motion for leave to amend was denied, and plaintiff's amended complaint was stricken in its entirety. Plaintiff now enumerates as error the refusal of the trial court to allow him to raise issues of usury under the provisions of 12 U.S.C.A. § 86 by amendment of his complaint and to give a request to charge connected therewith.

Plaintiff contends that the was entitled to amend as a matter of right under provisions of Code Ann. § 81A-115(a) (Ga.L.1966, pp. 609, 627; 1968, pp. 1104, 1106; 1972, pp. 689, 694). Plaintiff argues that the effect of this court's reversal of the trial court in the prior appeal was to create a de novo situation in effect, erasing the previous pretrial order so that plaintiff would be allowed as a matter of right to amend his complaint. In support of this contention plaintiff cites such cases as Worley v. Travelers Indem. Co., 121 Ga.App. 179, 173 S.E.2d 248; Glisson v. Bankers Health etc., Ins. Co., 64 Ga.App. 300, 13 S.E.2d 84; and Sirmans v. C. & S. Nat. Bank, 132 Ga.App. 894, 209 S.E.2d 697.

However, none of the above cases involved a situation in which a pretrial order had been issued under Code Ann. § 81A-116 (Ga.L.1966, pp. 609, 628; 1967, pp. 226, 231; 1968, pp. 1104, 1106) controlling the subsequent course of the action which has not been modified. "A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order." Code Ann. § 81A-115(a), supra. Here a pretrial order had issued limiting the issues and controlling the subsequent course of the action. Furthermore, there was no timely motion filed to amend the pretrial order. See Echols v. Bridges, 239 Ga. 25, 27-28, 235 S.E.2d 535; Gilbert v. Meason, 145 Ga.App. 662, 663(1), 244 S.E.2d 601; Mullinax v. Shaw, 143 Ga.App. 657, 661, 239 S.E.2d 547; Cooper v. Rosser, 232 Ga. 597, 598(2), 207 S.E.2d 513. The trial court did not err in striking the amendment to the petition and in denying plaintiff's motion to amend thereby excluding the claim of usury. No charge on usury was required.

3. The only theory of liability left in the plaintiff's case on appeal is predicated on Code Ann. § 109A-9-505 (Ga.L.1962, pp. 156, 424; since amended 1978, pp. 1081, 1132, effective July 1, 1978). This statute applies only where there is a security interest in consumer goods. During the trial defendant stipulated that the debtor had paid slightly more than 60% Of the cash price on the note, which was designated by the defendant on said note as a "consumer note." However, defendant contends in arguing its motion for directed verdict that no evidence was presented that the automobile involved was "consumer goods." Goods are consumer goods if they are used or bought for use primarily for personal, family or household purposes. Code Ann. § 109A-9-109 (Ga.L.1962, pp. 156, 388; since amended, 1978, pp. 1081, 1093, effective July 1, 1978). The evidence as to whether or not the automobile was consumer goods or was purchased for use in plaintiff's business is not clear and absolute although it is sufficient for the jury to make a determination either way. The evidence shows the plaintiff as a self-employed owner-operator of a child care center while employed by Fulton County, Georgia, as a deputy marshal. He testified with regard to the "consumer note" used in the purchase of his personal automobile (a 1972 Ford Gran Torino) in which it was shown to be used on at least one family trip and that upon finding the automobile missing he reported it stolen (fall of 1976), later determined to have been repossessed by defendant. He also gave his opinion based upon his knowledge of automobiles as to its value ($3,000 to $3,200 and "at least $2,500"), having less than 35,000 on the odometer and in excellent condition at the time of repossession. His testimony further discloses that at the time of sale (March 15, 1978) it had a value of $1,500. He also testified as to his knowledge of rental values of automobiles and that in his opinion the rent on his automobile would have been $15 per day for hire.

Other testimony disclosed the length of time between the seizure and the time of this case as the defendant held the automobile until it was sold following the opinion of this court in Marshall v. Fulton Nat. Bank, 145 Ga.App. 190, 243 S.E.2d 266, supra. No testimony was elicited as to whether or not the automobile was ever used in his private business or was used by him as a deputy marshal. Clearly the trial court was authorized to instruct the jury that unless it determined by a preponderance of the evidence "plaintiff, Roland C. Marshall, used or purchased the 1972 Ford automobile, which is the subject matter of this litigation, primarily for personal, family or household purposes . . . (your) . . . verdict must be for the defendant."

Based upon the above testimony, the trial court did not err in refusing to direct the verdict for the defendant as the evidence would have authorized the jury to have found from the evidence the automobile was "consumer goods." However, as the jury found for the defendant a determination may very well have been made that the automobile was not "consumer goods" or that the plaintiff failed to prove by a preponderance of the evidence that the same was used or purchased primarily for personal, family or household purposes as instructed by the trial court.

4. Plaintiff elected under Code Ann. § 109A-9-505, supra, to seek a recovery in conversion, that is, damages for the value of the automobile and its hire. Evidence as to the value of the automobile and for its hire with reference to rental value was offered. However, the trial court only instructed the jury with reference to plaintiff's action that it was for a tort in which plaintiff was seeking $2,500 general damages and $10,710 for hire. The trial court failed to fully instruct the jury why in a legal repossession case that under Code Ann. § 109A-9-505, supra, if the secured party having taken possession of the collateral on which the debtor has paid 60% Of the cash value of consumer goods, the debtor may recover in conversion. A written request had been made for the court to charge as to the right of the plaintiff to recover value and the right to recover hire. The trial court failed to properly charge the jury as to conversion, that is, the measure of the damages allowed as to the value of the motor vehicle at time of conversion and its hire (in...