*1 prior ap- to obtain a search warrant for her trate proval residence without judge issuing wiretap of the warrant. There is no merit to these claims. (5) (b) maintaining § OCGA 16-11-64 relates to the confidential- ity authenticity application documents, of the and related bearing during has on disclosure of information obtained the wire- (b) (8) tap, § § OCGA which covered 16-11-64 and 18 USC 2581 (8) (b). Disclosure of this information to obtain a search warrant of directly specified wiretap Odom’sresidence related to the crime in the proper (b) § § warrant was under 18 USC 2517 and OCGA 16-11-64 (8). authority requiring judge wiretap There is no who issued the supervise period during warrant to tap. such disclosures of the wire- 110) (1978). State, Morrow v. (b) (1) (B), § As to the violation of OCGA 16-11-64 this superior judge, upon proper application, section authorizes a issue an court investigative employing warrant electronic surveillance de- as vices defined OCGA 16-11-60.It does not control the issuance regular by magistrate of a search warrant based on information gathered wiretap.
7. Odom’s sixth enumeration of error was withdrawn. 8. We decline to address the defendants’ additional contentions addressed to their common enumerations of error one and three in joint supplemental deadline, extended, their brief filed after the as allege under Rule 14. Since these contentions additional errors not supported by authority argument raised or they briefs, in the initial (c) (2), are deemed abandoned under Rule 15 not be “ ” supplemental [ed] ‘resurrect abandonment’ brief. Bick- Joyce Sportswear 564) Co., nell v. (1985). Judgments Sognier, McMurray, J., J., P. con- affirmed. cur. 199 Decided March July 199
Reconsideration denied appellants. Herbert Shafer, Attorney, Gregory Wilson, Adams, Robert E. District A. Michael Thorpe, Attorneys, appellee.
D. Assistant District A91A0384.COSTANZO v. JONES.
Per curiam. brought against Plaintiff Jones suit defendant Costanzo County, alleging Fulton defendant was indebted to State plaintiff pursuant commercial (as
$17,814.46 of September Defendant denied the material allegations complaint. addition, of the defendant asserted “indis- party” pensable and “accord and satisfaction” defenses.
Thereafter, plaintiff summary judgment. for The moved motion accompanied by copy affidavit. A of the at- tached thereto. “landlord,” plaintiff, as by
The lease was executed and defend- ant, pay plaintiff as “tenant.” It called defendant to rent” “base $4,500 per in the amount of commencing month for 36 months June 1, plaintiff required pay 1988. It also defendant to “additional rent” — wit, to The taxes and utilities. lease was not under seal. affidavit, plaintiff deposed his of is the owner real property Boulevard, Atlanta, located at 6483 Peachtree Industrial County, Georgia; property subject DeKalb that that is the of the lease defendant; plaintiff February 24, between on 1989, Scott, he “sent a to agent, letter defendant’s Don of Santa Fe (“Santa Fe”) Supply Company Tool and at 6483 Peachtree Industrial . . notifying Boulevard . said of amounts under due the lease taxes”; pay for utilities and and that defendant failed to the amount deposed pay due. Plaintiff further to that defendant failed the rent 31, on May May plaintiff due and that on made de- taxes; past past mand for due rent and due utilities and that on June 5, 1989, plaintiff $4,500 Fe; received a check from Santa that on June 26, 1989, plaintiff rent; again made a written past demand for due plaintiff that defendant failed to payments make to under the lease. 19, 1989,1 July
Plaintiff’s affidavit continued as follows: “On filed dispossessory County a action the State of . . DeKalb . against possession the defendant or premises. tenant of the leased My attorney dispossessory complaint informed me that was never . occupant answered. . . premises, The Fe . . . of leased Santa sought to by proposal my attorney August avoid eviction a to On 3,1989,1, through my attorney, entered into an agreement with Santa my Fe to taking possession prem- defer writ on the leased ises. . . . After making payment, Fe initial Santa failed to make payments required agreement. Subsequent of the under the making to the August payment, Fe Santa premises. abandoned pay past the leased . Defendant failed any right amounts and posses- evidenced no desire to maintain sion.”
Plaintiff further August that on he obtained a possession premises writ of to the leased from the State County; that, Court of pursuant possession, DeKalb to the writ 30, 1989; premises August leased possession took of the and, conse- premises damaged were defendant and/or necessary repairs quently, premises. it was to make numerous repairs premises A made to the was attached to copy record affidavit. The went on to recite the part and made a of the affidavit property. of taxes and utilities which had accrued on the amount County dispossessory The the DeKalb documents incorporated affidavit and therein ref- were attached to 19, 1989, July plaintiff They show that on filed a erence. County “in- against in the State Court of DeKalb
warrant Supply Company, Fe dividually and Santa Tool and d/b/a Blvd.” It was “that said tenant fails to Peachtree Industrial pay pay agree- rent now due . . . failed to taxes and utilities re: lease possession sought “judgment ment.” Plaintiff a writ of $12,515.30 filing.” dispos- due rent as of date of The sessory plaintiff applied pos- documents also show that for a writ of 21,1989, answer; August alleging session on failed to file an possession day. and that a writ of was issued the next In a brief accompanying judgment, plaintiff pursuant asserted that defendant was indebted to *3 $125,143.11. in the lease the amount of summary judgment hearing Plaintiff’s motion for came on for a day, on June That same 1990. filed an amendment setting his answer forth two additional defenses. It alleged was that signed representative capacity the lease in a the and Capital should be reformed to reflect Corporation” that “Santa Fe It was the “true lessee.” was also action was “by barred estoppel, judicata, estoppel by the doctrine of res and judgment.” day
Defendant also filed an affidavit of the hearing. on the Therein, negotiation that at all times the during and exe- cution of the lease “the agent was disclosed for Santa Capital Corporation Fe completely parties and it was the intent all in Cap- that the tenant and named lessee the lease would Fe be Santa Corporation. only ital property tenant of this was Fe Santa [T]he Capital lease, Corporation. Essentially, I signing after the of this have had no I contact with the Plaintiff. was an officer of the said Capital officer, I Corporation, but the was not sole was not the sole stockholder, active, daily operating and did not take an role in the corporation, business of the and all of these facts were well known to plaintiff prior the to and at the time of the execution of the lease.”
Thereafter, plaintiff in submitted a second affidavit which he de- posed: “My in contracting intent for the lease of [defendant] premises] [defendant], individually, was to contract with as the [the proprietor in engaged of a business the sale and service of tools and lease, making Prior to and at the time of said I equipment. had no knowledge Capital for Fe Corpora- Santa [defendant] or I entity principal. ... knew that tion [defendant] engaged owner of a business sale and service of tools and [defendant], I equipment. individually, ... understood that would doing premises business at the leased the name be of Santa Fe I Supply Company. said only Tool understood that name was used ... I business name intended to contract with [defendant]. individually I per- because understood that he be would [defendant] sonally personal I obligated obligation on the lease. considered such ensuring obligations the the consideration lease would be I performed. requested entry have never of default judgment on past the due rent claimed the Court dispossessory DeKalb State any judgment . nor has been rendered that Court on the rent, past I a full opportunity litigate issue due nor have had the prior only issue of rent action. The issue adjudicated by possession.” Court was the issue of Thereafter, July on plaintiff an amendment to his summary pertinent part, judgment. motion for the amendment fairness, justice reads: the interest of hereby Plaintiff “[I]n reduces his demand for damages showing contractual the Court that has premises obtained a Tenant new at is- $99,935.22.” sue. Plaintiff’s demand is reduced to 13, 1990,
On August granted trial court motion for summary judgment “as of liability only.” to the issue Defendant pealed August Thereafter, on 1990. September on 9, 1990, trial court following entered the “On August order: this court granted Plaintiff’s motion for judgment as to the issue of liability only, and Rule hearing issued a Nisi for on the issue of dam- ages. The issue of damages having come August before Court on 29, 1990, having Plaintiff, Court argument heard oral being appearance there defendant, having behalf consid- ered all the evidence . . . this hereby grants Plaintiff’s motion Summary Judgment as to the issue of $98,927.21.” *4 appeal,
On First, defendant raises two enumerations of error. he contends the trial court erred in granting for sum- mary judgment regard liability. Second, contends trial court erred in granting plaintiff’s summary motion for judgment with damages. Held:
1. supersedeas The motion for a bond is denied. 2. in granting plaintiff’s Defendant contends the trial court erred motion for judgment liability question as to because a (a) exists agreement fact as to whether the lease should be reformed (b) whether judi- is barred the doctrine of res 810 disagree.
cata. We reformed, (a) In order for a lease to be the com- mistake, i.e., plaining party must show a mutual a mistake both Sales, Pumping Equip. A. J. Concrete v. Richard O’Brien 256 parties. (1) (353 795, 496); Wayne Pools, Thomaston v. Fort 796 794). 541, App. pierce To defendant’s ref- 181 Ga. defense, plaintiff presented mistake was ormation evidence (and deal) only intended to with defendant unilateral since dealt individually. affidavit, parties mutually in- his Thus, Capital Corporation
tended to name Santa Fe as the lessee. de- appear an regarding fendant’s affidavit would to create issue of fact Nonetheless, parties.1 plain- intention of the find that the mutual we judgment tiff was entitled to on the reformation issue as a matter of Why? present showing law. Because defendant did not evidence pass parties put how it came to his name alone on the con- tract. mistake,
To reform a contract on the basis of mutual the evi- parties. dence must show more than the true intention of the It must “why language sought show left out... be inserted was or how Poole, 477, the mistake v. occurred.” Wheeler 326). judice, In the case sub record devoid of evidence why, if showing parties Capi- intended the tenant to be Santa Fe Corporation, Capital Corporation’s tal name does not pear agreement. in the lease pierced by showing
Plaintiff defendant’s reformation defense Thus, upon lack of mutual mistake. it was incumbent present showing evidence that his reformation defense remained via- (e). ble. OCGA 9-11-56 This defendant failed to do.
(b) Georgia law is clear that
judicata
doctrine
res
cannot
be invoked in the
of a
judgment upon
absence
final
the matter
“
question.
only
judgment upon
pre-
‘It is
a final
the merits which
upon
vents further contest
the same issue and becomes evidence
parties
another
privies.’
action between the same
or their
‘No
[Cit.]
finding
nor verdict will bar another suit until
is rendered
Mitchell,
385).
upon
it.’
v.
Mitchell
97 Ga.
SE
See
[Cit.]”
Georgia
consistently
parol
“The
courts have
held that
evidence is not admissible to
person signed
purports
show that a
a written contract under seal as
unless the contract
Brega
Realty Company,
principal.
v. CSRA
its face to be the contract of the
223 Ga.
Company,
(1967);
Carr v. Louisville & Nashville Railroad
811 Price, v. Lewis 104 Ga. Al- also 474 SE2d pleadings though the show that the issue, put of in it is amount rent was clear that no final pronounced by County was judgment respect the DeKalb court with plaintiff effectively pierced rent issue. It follows that defend- judicata ant’s res defense.
(c) The trial court not err in granting did respect summary judgment liability. with to 3. This Court cannot consider attacking defendant’s enumeration subsequent the correctness of the court’s trial award of in damages timely appeal of no favor the because notice of from filed granting summary the court’s order in judgment regard. trial grant summary judgment The initial of the liability issue of directly appealable by pursuant to OCGA 9-11-56 § (h). (d), to Pursuant OCGA 5-6-34 defendant would be entitled to prior as or contemporaneous enumerate error other rulings in the Klem, v. case. Southeast Ceramics
(1980). not, however, Defendant would be entitled to enumerate as subsequent error and all other in rulings the case. An “enumera- tion be . . complains cannot considered . that it . . . ruling of [if] . . . subsequent filing was entered . appeal. of the notice of . . Cates, (2) 416) (1969). Cates [Cit.]” “[Judgments appeal] be considered rendered [can]not [on [if] subsequent . appealed . . to the judgment from. Lowe v. Wat- [Cit.]” son, 774) (1971). . . . raised “[I]ssues not . encompassed within the final order from are] which [which taken, appeal has been . not . . raise [be] [d] [on peal], in through either enumerations of error or arguments in briefs of Accordingly, counsel. error enumerations of address [Cits.] [which subsequent grant of judgment damages], on the issue of being properly court, not before this not now be considered. [should] Blakely Son, (1) & Ltd. Humphreys, [Cit.]” 826) (1978). subsequent Orders entered filing appeal notice of are appealable only pursuant a subsequently appeal. filed notice of The enumeration of error in the instant case which addresses the sub- sequent grant summary judgment on issue of not predicated upon timely appeal notice of from that order appealable order which encompasses subsequent ruling. Accordingly, jurisdiction grant we have to consider the summary judgment damages. on the issue of J., Judgment J., Banke, J., Sognier, Birdsong, P. P. affirmed. JJ., Carley, Pope, Andrews, McMurray, Beasley, Cooper concur. J., P. concurs part part. and dissents in concurring part dissenting Presiding Judge,
McMurray, part. respectfully I from Divi- 1 and but dissent I concur Divisions to enumerate error my opinion, is entitled sion 3. not file a notice awarding damages though even did judgment. appeal respect courts, appellate appellant appeal is taken to our When an *6 entered any ruling, order or assign upon error can Klem, Southeast Ceramics SE2d court below. Co., Allen v. Rome 199). See also Kraft jurisdiction to consider defend It follows that we have regard damages issue. of error with ant’s enumeration upon ruling en- assigned that error cannot be holding Cases e.g., Cates (see, appeal subsequent filing of the notice of tered Watson, 416) Cates, and Lowe v. South- 774)) longer light viable are Klem, supra, east Ceramics v. emphasis upon judicial econ- with its omy. Klem mandates consideration of previous contemporaneous and practice appel- subsequent rulings the case: “We frown appellate determina- encourage installment and seek to late review possible appellate proce- in a case the fewest tion of issues taken, appeal . . . We hold that when a direct dures. may in the case and which af- judgments, rulings or orders rendered appeal and reviewed and proceedings fect the below be raised Klem, Southeast Ceramics v. appellate court.” determined supra at 295. my
It is view that defendant’s enumeration of error with on the merits. to the issue of should be addressed July 199 Decided July 199 denied Reconsideration Haldi, Glenville appellant.
Eason, Associates, Sumner, David A. Ken- Kennedy & John nedy, appellee. COMPANY v. STRIGGLES.
A91A0387. HANOVER INSURANCE Judge. Beasley, optional PIP benefits Striggles
Bernice filed suit for retroactive carrier, Hanover Insurance Com- against her automobile insurance rejec- pany, grounds that it had failed to obtain a valid written on the $45,000 in PIP Both sides moved for sum- optional coverage. tion of