Myers v. Wynn

• Decision Date: 05 November 1991
• Docket Number: No. A91A1567,A91A1567
• Citation: 201 Ga.App. 764,412 S.E.2d 581
• Parties: MYERS v. WYNN.
• Court: Georgia Court of Appeals

Page 581

412 S.E.2d 581

201 Ga.App. 764

MYERS v. WYNN.

No. A91A1567.

Court of Appeals of Georgia.

Nov. 5, 1991.

Daniel F. Byrne, College Park, for appellant.

Darrel L. Hopson, Jonesboro, for appellee.

BIRDSONG, Presiding Judge.

Appellant Hazel P. Myers appeals a jury verdict awarding appellee/plaintiff Johnnie Wynn $7,500 plus interest. Wynn claimed this amount was owed her for a real estate sales commission which Myers failed to pay and converted to her own use. Wynn worked for appellant Myers' realty company as a real estate salesperson in 1989 when this commission was earned. Myers contended she had done all the work on the sale and that Wynn's name appeared on the sales documents only because Myers was unable to attend the closing. Wynn also claimed Myers was indebted to her for a loan of $6,000 which Wynn had made to Myers' corporation. At trial, the purchaser of the real estate testified Wynn had been the only person involved in negotiating the sale of the property.

On appeal Myers contends the trial court erred in failing to direct a verdict in her favor, since appellee Wynn failed to prove she was a real estate licensee in Georgia when the alleged cause of action arose, as required by OCGA § 43-40-24. Held:

As to the requirement to prove a license for the purpose of suing on a contract permitted to be entered only by licensed persons, Management Search v. Kinard, 231 Ga. 26, 28(3), 199 S.E.2d 899 held that under the Civil Practice Act it is not necessary for the plaintiff to plead the existence of such a license in order to state a claim (Id.; Maxwell v. Tucker, 118 Ga.App. 695, 698, 165 S.E.2d 459); but, "at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure, it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery." Management Search, supra at 29, 199 S.E.2d 899; Culverhouse v. Atlanta Assn., etc., Persons, 127 Ga.App. 574, 578, 194 S.E.2d 299.

Appellant asserts the record contains no evidence that Wynn was duly licensed at the time this cause of action arose. However, only part of the trial was reported. Wynn contends that in the part not reported, appellant herself testified to the fact that Wynn was a licensee, but as to this assertion we are governed by the rule that briefs cannot be used in lieu of the record or transcript for adding evidence to the record. Star Mfg. v. Edenfield, 191 Ga.App. 665, 667, 382 S.E.2d 706. Therefore, we do not consider Wynn's assertions in her brief that there was evidence presented which proved she was a licensee.

Nevertheless, appellant has the burden on appeal to show error by the record (Hutchinson v. Perkins, 194 Ga.App. 389, 391 S.E.2d 122), and although at trial the burden of proof lay on appellee to prove she was licensed in order to recover, appellant "still had the duty to prepare a record sufficient for this court to review the judgment of the court below" (Lee v. Fuerst & Davis, 173 Ga.App. 362, 363, 326 S.E.2d 482); and where the record is inadequate to determine the utter lack of any evidence that plaintiff was properly licensed, "we must assume that the judgment below ... was correct." Id.

The record does disclose that when appellant made her motion for directed verdict on the issue, the trial court refused, saying: "[Wynn was] hired to sell real estate by [Myers] and I'm sure that [Myers] is not claiming she violated her broker's oath by hiring an unlicensed agent." The trial court noted...