*1 appear limits as “additional” have than limits limits rather total does defect, nullify not of constituted a we hold this mistake was suffi that magnitude compliance” offering. cient with “Substantial offering the Code section was all that needed order Assn., Anderson be valid. See v. United Svcs. Auto. apparent It is overstatement optional coverage available PIP limits could have been material coverage since, factor in the insured’s decision not to select such her, the extent it misled her would have misled to believe she would coverage payment $5,000 receive tional ingly more PIP in return for of the addi premium actually amounts listed than was the case. We accord prevent conclude that the mistake did not the insured’s failure constituting rejection op to return the document from a valid coverage actually grant tional PIP mary judgment available to her. Both the sum summary judgment
to the insured and the denial of coverage consequently insurer on the issue are reversed. Judgment Birdsong, Beasley, J., J., reversed. C. concur. — 2,
Decided December Rehearing denied December Moody,
Drew, appellant. Farnham, Eckl & G. Randall appellee. Feldman, Monroe Goodman, J. Michael D. 76525, 76526. DEPARTMENT OF TRANSPORTATION al.;
v. PETKAS et and vice versa. Judge.
Carley, seq., Transpor- § Pursuant to OCGA 32-3-1 et (DOT) tation condemned which was owned Mr. Nick (condemnees). just Petkas adequate and others The issue of com- pensation was tried before a and the verdict which was returned paid excess of the amount which had been into court DOT. judgment The trial court entered in favor of thе condemnees for the Relying Thereafter, difference. DOT filed a motion for new trial. (b), subsequently § OCGA judg- 32-3-19 DOT also moved that the having ment turely prema- favor condemnees be vacated been
entered on the verdict. The trial court denied DOT’s mo- judgment tion for new but it did order in favor of the appeals condemnees be set aside. In Case No. denial of its motion for new trial. In Case No. the condemnees cross-appeal setting judgment. from the aside of the
Case No. cross-appeal relates to raises an issue 1. Because the appellate jurisdiction other condemnation over this existence actions initiated seq., pursuant will § et 32-3-1 to OCGA *2 addressed first. be grant DOT’S motion of error thе enumerate as The condemnees jury’s judgment the ver- entered on had been the
to set aside judgment urging previously in favor of indicated, As dict. premature, § OCGA DOT relied set the condemnees be aside (b) granting aside, the trial court set and, motion to 32-3-19 also (b) provides: § “After OCGA 32-3-19 relied that statute. jury, shall, where no motion in instances verdict of the the court for by provided appeal the time within new trial or notice is for filed of appellate by proper has been or such verdict law where affirmed judg- been made court has and the such court ment remittitur from judgment superior court, of condemnee enter favor together against verdict, amount of such and with the accrued court condemnor immediately judgment costs, shall by money deposited with the the condemnor with the sum of credited declaration section DOT’s construction of provided in sub- interest as and which shall bear (c) supplied.) (Emphasis Under . . .” of this Code section. (b), entry judgment in §
OCGA 32-3-19 timely for new motion no authorized had this case would have been timely filed, trial was but, for new trial entry filed since a motion been prohibited. judgment premature and prohibits, addressing consid- of what statute Before issue literally, given If read the statute authorizes. eration must be to what (b) contemplates “shall” enter the trial court § OCGA 32-3-19 jury’s First, judgment enumerated instances. verdict in three judgment for new no “where motion the trial court “shall” enter by provided However, ...” for law. trial. ... “the time is filed within timе by filing provided new for the of a motion for for law” judgment begin entered has been until such not to run time does judgment Accordingly, jury’s “shall” direction that on the be entered in verdict. surplusage. judg- A is mere enumerated instance by necessarily in all the trial court have been entered ment “shall” timely filed, been for the for new trial has instances no motion where very been otherwise have for trial could reason that no motion new (b) timely provides trial court Second, that the § 32-3-19 filed. OCGA appeal judgment is filed within . . . notice of “where no “shall” enter provided by provided for However, . . “the time law. .” the time begin appeal by filing likewise does law” of a notice of jury’s judgment ver- entered on the has been run until such time as a judgmеnt entered “shall” be dict. the direction surplusage. judgment this necessarily is mere A enumerated instance also “shall” entered the trial court in all instances have been where timely appeal entry because, no has been filed absent the notice judgment, appeal timely such no notice of could otherwise have been (b) provides Third, § filed. OCGA 32-3-19 that the trial court “shall” judgment proper enter “where such verdict has been affirmed appellate portion meaning- . . .” This court. the statute is either surplusage appellate worst, less at or it mere at best. An court has jurisdiction appeal and, to hear an from a “verdict” there- judgment fore, a direction that “shall” be entered wherе the “verdict” appeal meaningless. has been affirmed on If the word “judgment,” judg- “verdict” is to be read as then direction that ap- ment “shall” be entered the trial court after an affirmance on peal surplusage. appellate is no more than mere An court would have jurisdiction appeal judgment no the over the unless had been entered on “[Tjhere entry finally judgment verdict. must be an dispose purpose using judgment sup- case port Supreme Dunagan an to this court or the Court. Sims, Accord- *3 ingly, judgment necessarily by a “shall” have been entered the trial in all instances where there has been an affirmance of the case by appellate entry court, an that, for the reason absent the of such a judgment, appellate jurisdiction lacking. would otherwise be possible, language “Where we construe used the General As- sembly meaningless in a manner that will not render it or mere sur- plusage. B., State Ga. v. C. S. (1982). “[I]t is nevertheless a cardinal rule of construction that legislative though the verbiage effectuated, intent shall be even some of the an enactment have to be from eliminated the text.” State, Youmans v. SE It is trial legislature parties clear that the intended that the to a pursuant which is held in a condemnation § action initiated to OCGA seq. right 32-3-1 et have “the same to move for a new trial and file a appeal (a). notice of as in other . § cases at law. . .” If OCGA 32-3-16 any given legislative possi- effect is to be intent, that clear it is not language (b) ble being to construe the § relevant of OCGA as 32-3-19 anything meaningless surplusage. other than discussed, or mere As right appeal the to move afor new to file a notice of and to have appellate upon premised prior an resolution of the case are all entry judgment by the trial court on the verdict. language (b) explicitly If the § of OCGA 32-3-19 directs entry judgment meaningless in certain enumerated instances surplusage, necessarily validity or mere follows that there is no language implicitly prohibiting DOT’s construction of that en- try judgment give in the unenumerated To instances. effect to that could result that there the absurd would lead to construction seq. appeal § et under OCGA 32-3-1 action in condemnation viable timely filing interpretation, for motion mere of a Under prior contemplate appeal, of which or a notice of both new trial entry judgment jury’s verdict, have the anomalous would of a prior viability judg- underlying consequence destroying of that proceedings appealable in order the case ment as final unappealable necessarily nonfinal with the otherwise end would “ duty the results and court to consider verdict. ‘It is the consequences proposed and not so construe construction consequences not con- or absurd statute as will result templated unreasonable legislature.’ Atkinson, Barton v. “ of an ‘[W]hen tо follow the words consequences, absurdity that con- to an enactment would lead interpreter depart authority from them.’ stitutes sufficient (1) (23 SE Gillis, 1,Ga. [Cit.]” Gillis v. (b) relying § 32-3-19 as au- OCGA The trial court erred thority judgment setting it had entered on the aside court which sets order of the trial verdict. judgment direc- is remanded with aside that is reversed and the case original judgment. court reinstate the tion that trial Case No. 76525 Technically, remittitur Case No.
2. such time as the until judg- judgment court, trial there is no actual 76526is made the ment in the predicate its motion DOT could either case appeal However, in thereof. denial for new or its parties, economy judicial ad- we will fairness interest of dress the main in DOT’s merits errors that are enumerated refiling аppeal, contemplation aof of DOT’s rather than dismiss subsequent reinstate- trial or notice of motion ment of the new holding judgment No. Case that is mandated our *4 76526. 50 of some 3. trial to admit into evidence The court refused evidentiary ruling property. photographs is enu- This
DOT’s merated as error. photographs the to the disallowed on trial, was At introduction subsequent
clearly ground made had been erroneous property “It is the substantial DOT. date that the had been taken Camelot resemblance, date, which should control. not the (2) (288 Lawns, 161 Ga. Club Condo. Assn. v. Metro subsequent although photographs, to made representa- taking, accurate to be a fair and the date of tion of the were shown phоto- property on the date of generally graphs clearly L. L. Minor Sackett v. See were admissible. (1979). Co., 244 Ga. apparently denying In the trial DOT’s motion new recognized evidentiary ruling erroneous, that its was but it further photographs concluded that the excluded were other cumulative of photo- evidence which had case. The been admitted excluded graphs any photographs however, not, were other cumulative of intro- ruling photo- all duced DOT. The trial court’s graphic excluded of DOT’s proposition erroneously
evidence. The that DOT’s excluded photographic merely be evidence should considered cumulative of testimony easily the oral is “A can untenable. condemnation case be- confusing parties come a if mass of do not numbers introduce intelligible supplement testimony.” Pursley, clear and evidence to ¶ (1982). p. Domain, 7-10, Ga. Eminent The court did allow supplement photographs the condemnees to introduce to the testi- mony supported just adequate their contentions as to the and compensation property. erroneously DOT, however, re- quired rely solely upon support oral its own conten- regard. evidentiary ruling excluding tions DOT’s all erroneous photographs “effectively harmful because evis- theory” just adequate compensation [DOT’s] cerated property. and Collins, Harris 4. The trial court refused to allow to cross-examine wit- regard taking, pend- nesses with that, to the fact at the time of the ing lawsuit between two of the condemnees involved the subject proceeding. ruling which was the of the condemnation is right enumerated as an erroneous curtailment DOT’s to conduct a thorough sifting and cross-examination. urge improper The condemnees that this cross-examination was any showing by legal dispute absent DOT that the would inter- have any property. ignores, fered with sale or lease of the This contention very purpose however, that of DOT’s cross-examination was to legal dispute determine whether or not would have interfered with sale and, therefore, or lease of the whether or not it price would hаve an effect on its value. “Fair market value is the required, buyer desires, a seller who but not to sell who required, buy, agree price, desires, but is not would a fair after reasonably affecting due all consideration of the elements value. (Emphasis Wright supplied.) v. MARTA, There can be no doubt that the existence of law- prop- suit between could co-owners have an effect erty’s exposes litigation value. “A title which the vendee is not a good danger apparent real, merchantable one if the thereof is merely imaginary illusory, apprehended upon *5 can be no ascertain- truth to which there some fact or as the basis of Realty certainty. B. Co. Mrs. E. Smith ment with reasonable (1974). Accord- Hubbard, Ga. v. inquiry ingly, isting an ex- it concerned relevant because DOT’s prop- the value of the could have affected circumstance erty. any relevancy urge of the cross-ex further The condemnees outweighed by prejudice. If, however, wit be its amination would nesses had legal impact negative responded of the to certainly dispute property, of the the condemnees the value prejudiced. If, hand, the witnesses on the other would not have been relevancy inquiries responded affirmative, in DOT’s had those affirmative would to property responses the value of the to the issue of clearly outweigh arguable prejudice the condemnees. to “ subject an ‘A material fact is not relevant and Cagle Poultry jurors.’ Co. &c. the minds would inflame (1b) The trial Busick, 551, 552 v. sifting thorough erroneously abridged right DOT’s to a harmful. and that error was cross-examination to introduce evidence 5. The trial court allowed condemnees plans property changes regarding prior its for the DOT in made evidentiary ruling taking. enu- of the actual date merated as error. urge to rebut that this evidence was admissible condemnees opinions testimony experts as to value been of DOT’s whose improvements part, vacancy
based, on the date of the only inquiry prop taking. However, was the value relevant erty property date That the value of anticipated condemna result of the date have been lessened adequate compensa totally just tion is irrelevant to the issue of occurring property date of “[L]osses tion. the actual before compensable Thus, are not actions. while direct condemnation anticipated there is a as a result condemna diminution value paid. compensation may Cabaret, [Cit.]” Josh Inc. tion, no be Dept. Transp., pre-taking plans changes the evidence as to the way property ex of DOT’s was in relevant to rebut the “ paid perts. compensation condemned to be ‘Since jury taking, time of its actual to be determined value at the prior time of tak to the actual can not the value at a time сonsider ing.’ Enterprises MARTA, [Cit.]” Will-Ed undoubtedly infer caused the The inadmissible evidence pre-taking guilty faith, that such bad that DOT somehow given in the determination bad faith consideration should be taking. Indeed, value of the on the date of actual the con- demnees used the inadmissible evidence as a basis from which ar- gue duty that DOT owed ... to let “the them position rather to make some sort of reasonable business decision piece anything *6 than sit there with a of couldn’t with do period years, years, year, $100,000 $750,000 for a that that of a six six at that’s
they waiting something happen lost while were property.” predicated The evidence which the condemnees argument totally prejudicial, this was and and irrelevant its admission By еvidence, constitutes reversible error. condemnees were pre-taking the admission of this the. erroneously allegations of allowed to raise DOT’S [was] “bad faith ... in a in which the forum sole issue just partment adequate compensation taking], and [as of De- [Cit.]” the date of Transp. (1) App. &c., v. Franco’s Pizza 164 Ga. of (297 72) (1982). SE2d That the condemnees were “unable to rent the [improvements] property once the condemnor announced its plans property compensa- to take the . . [is] . a [which] ‘loss’ is not (291 (6) [Cits.]” MARTA, ble. Collins v. 163 Ga. 742) (1982).
6. DOT enumerates error as the trial court’s exclusion statisti- concerning mishaps cal evidence the occurrence of actual traffic at the property interseсtion where the was located. ruling It is the condemnees’ contention that the effect of this was
only
merely
to exclude evidence which was
cumulative of
evi-
other
regarding
dence which had been admitted
the existence of traffic and
safety problems
reveals,
at the
A
intersection.
review the
record
report
merely
however, that the excluded
not
was
additional evidence
general
safety problems”
as to the
existence
“traffic and
at the in-
sought
quantify
clarify
general
tersection. It
and those
traffic
problems by
exactly
showing
many
mishaps
how
actual
had occurred
at the intersection. The condemnees were allowed to show that the
presumably
high
was
bеnefited
the intersection’s
traffic
high
count, and DOT was likewise entitled to
show
traffic
entirely advantageous
prop-
count was not an
element. The value of
erty
high traffic-mishap
may
located at a known
intersection
differ
from the value which is located at an intersection presents only
general
safety problems”
usually
such
“traffic and
as are
high-traffic
Department
Transp.
associated with a
count. Cf.
v.
(4)
344) (1983),
Whitehead,
aff’d
9. every presumption bound to construe the evidence with inference and Felton v. Mer- being upholding favor of verdict. cer, (1) (1979). However, Ga. principle application has consideration of enumerations evidentiary wherein rulings the trial court’s are asserted to be errone- ous. questions Resolution of fact does not insulate the rulings admissibility appel- court’s legal of evidence scrutiny. late If to find facts based evi- allowed erroneously dence which was or in absence admitted of evidence excluded, erroneously judgment entered that verdict Here, discussed, must be reversed. for the reasons the trial court com- whereby mitted numerous errors were to in- condemnees allowed troduce evidence which was of the value of irrelevant the issue property on the date of whereby DOT was not allowed introduce evidencе which was issue. Those relevant to that errors were harmful. the trial court erred denying DOT’s motion for a new trial.
Judgment reversed in Case Judgment No. 76525. reversed and case remanded with J., direction Birdsong, in Case No. 76526. C. Deen, J., P. McMurray, J., Banke, P. J., P. Pope, Benham and JJ., Beasley, Sognier, J., concur. dissents. Judge, dissenting.
Sognier, Construing the evidence in of upholding verdict, favor Realty Coopedge, Co. v. 155 Ga. App. Ackerman/Adair 645) (1980), and bearing in the well mind established rule that a judgment will not be disturbed where there is Evidence in the record verdict, to sustain the in the absence some material er law, Bullock, ror of (343. Bullock v. (1986), I must majority’s dissent from the reversal of the verdict Case No. 76525 since supporting present the verdict is *8 record and I find no material errors mandating reversal.
1. The trial court refused to approximately admit photo- graphs depicting subject the which were shot a DOT em- ployee shortly after the date of The issue on is not whether photographs the admitted, should have been since both I and the agree trial court with the majority that it would have been better to have admitted the photographs. The issue for determination is improper whether the exclusion of this evidence constituted a mate- rial error mandating reversal. “It is reviewing incumbent court to determine if the mistake magnitude sufficient to re- quire Enterprises Webb, a new trial. Dual S. v. (3) (227 SE2d prop- depicting photographs while no that record reveals erty during admitted, extensive testi- there was time frame were that employee property:
mony describing the DOT of the condition depth detailing photographed he the view testified scene who photographs shooting witnesses and other while had witnessed prop- delapidated length condition of about the also testified at testimony, Despite erty improvements this oral thereon. and the necessary majority verdict reverse the deems it nevertheless photographs I can find into evidence. were admitted no other because photographs majority one, cite that evidence, no rule nor does the testimony occupy higher so oral than level evidence some though adequately Thus, other. even one can never substitute picture popular adage is a that a worth there thousand be truth present, here words, are the “thousand words” where picture transcript, revers- not constitute of the does the absence construing evi- Rather, the other ible under this State’s law. error Realty uphold Co., verdict, trial to dence at supra, Ackerman/Adair that because determination I must with the trial court’s concur evidence, see cumulative of the excluded there was generally other Luther, Ga. Co. v. 128 Ga. Central R. (1973), photographs failure to admit the generally require reversing Whitehead verdict. See does not v. Cogar, App, 812, 813 180 Ga. to cross-examine two to allow the DOT 2. The trial court refused regarding or to the condemnees two of witnesses a lawsuit between record the voluminous allow the DOT introduce into evidence majority since that lawsuit. The concurs with affecting reasonably value” the elements allowed to consider “all 466) (1981), Wright MARTA, under this documentary admitted have been evidence should prospective into consideration whether so that the could take taking might purchaser have been as of the date negatively Condemnees, on of the lawsuit. the existence affected litigation among argue regarding them- hand, the other that evidence affecting no evi- value since was not was as an element selves dence sonably admissible dispute proffered rea- have would introduced or property. impacted sale or lease affected or introducing Secondly, point extreme confusion the condemnees prejudicial along litigation which, with the such other would create relevancy. outweigh jury, would far effect that evidence of factors of evidence court has held that admission may reasonably purchaser’s prospective decision influence County Macon-Bibb trial court. a &c. Auth. v. within the discretion matter Reynolds, 350-351 Sequoyah Transp. (1983); Invest Land see also
643 (2) (311 488) (1983). Co., ment 21 SE2d I find no Ga. here. A careful review the rec abuse of ord trial court’s discretion supports did the trial court’s determination that the DOT not value, this to issue demonstrate how evidence was relevant es by introducing pecially in view the in confusion caused the record complex litigation bitterly that into a contested condemnation prejudicial jury impact suit as well as the on of in of evidence fighting among judge the condemnees. “A trial has discretion to probative exclude even relevant substantially if he that finds value is outweighed unduly the risk its admission that will prejudice Kilpatrick jury being or mislead the or confuse the issues App. tried. (3) (364 588) (1988). Foster, I would find no reversible error in the trial court’s refusal admit (2) generally Cohen, evidence. Kane v. See experts opinions
3. The DOT’s testified that their as to the value appellees’ property part were fact based that the im provements taking. werе vacant on the In date testify difficulty rebuttal, condemnees were allowed that trying year improvements property during to lease the on their the six- public plans interval between the announcement of the DOT’s many changes and the actual date of because of the plans improvements, vacancy appear and that due to the though necessarily ance, value, had dramati cally majority deteriorated. The finds that this evidence was inadmis Dept. Transp., Cabaret, sible under Josh Inc. v. Ga. 346) (1987) “undoubtedly infer caused the guilty pre-taking citing support DOT faith,” was somehow bad language appellees’ closing argument. of this statement Aside language from the fact that the cited taken out has been of context (appellees’ appellees compen arguing counsel was not should receive pre-taking damages: urging sation he was not to be misled property by dilapidated property’s about the true value of the appearance years neglect), after six the record discloses interposed by allegedly improper argu the DOT to this Any stemming language ment. error from that Saxon v. was waived. Toland, 114 appel- As actual at the record is clear that litigating against lees were not an inverse condemnation suit they seeking compensatory damages DOT. Nor were losses period prior taking. incurred to the date of is clear is that What suprа, totally inapposite Cabaret, Josh here. As to the inference guilty” pre-taking faith, DOT was “somehow there bad appel- no evidence whatsoever in the DOT record that the defrauded capacity plans lees or acted in- outside its official when it altered the years prior Rather, volving appellees’ fully supports the evi- trial court’s determination the record majority objectionable rel- and the dence considered *10 relating the value as evidence admissible both evant and property mony the testi- and as rebuttal evidence to date of by experts. the DOT’s response evidently the inevitable DOT believes that While the impute pre-taking any jury will be to activities thе DOT’s informed of hostility agree the to the DOT, I do not that fraud to the
bad faith and juries imputes relevant inadmissible evidence DOT value of renders especially taking, of the date condemned testimony by necessary here, to rebut where, as the evidence is activity using pre-taking experts as a ba- own the effect DOT’s sis property. rule is well established The too for a value for the lower pertinent admissible, ex- it cannot be evidence is where merely prejudicial. v. Ford Motor Co. it would be cluded because (319 470) (1984). (4) Ac- Stubblefield, 171 339 SE2d Ga. cordingly, admission this evidence. I find no reversible error (2) (360 App. generally Hudson, SE2d Ga. 712 Rosenthal v. See 15) (1987). majority reversed verdict must be 4. The determines clarify- “quantifying and the DOT’s becausе the trial court excluded ing” regarding or near at actual traffic accidents statistical evidence appellees’ property Piedmont-Lindbergh is lo- intersection where required hotly trial some contested issue at cated. This was not persuade jury. The DOT’s detailed evidence to reams of statistical regarding compilation of other evidence was cumulative statistics safety problems at this uncontroverted traffic and the well known and case, I cannot under- of this intersection. Under stand how the discretion undisputed circumstances majority exercise of hold that the trial court’s can by regarding refusing repetitive a minor to admit wronged”
evidentiary “practically so as the DOT matter Fuel, v. See Leverett reversal of the verdict. mandate Flint (3) App. 75, 183 Ga. City testimony Regarding de- relative to the Atlanta’s 5. permits, building Batcher’s state- consists of Robert nial of ment property record building project on the to abandon a decided anything any permits get to the of the to do “[w]e because couldn’t explanation during building,” potential structurally his and James Beak’s statement building building could “the value building.” permit get to use the if be used we could hearsay follow-up by trial court on stricken Beak’s grounds. statement was was no other reveals that there record by witnesses on this matter. by majority made dur- which were comments cited
As to the ing by question posed matter, counsel and trial on this court by aрpellees’ witness, the trial and the comments made during argument jury, counsel before the the record discloses that the any objections, requests mistrial, DOT failed to make motions for any Thus, instruction. waived error com- during ments trial, Stevens, trial court Palmer v. and counsel see (1967); supra Saxon, at 806- (5); any questioning witnesses, waived error in trial court’s (6) (1943); State, see Pulliam 790-791 alleged improper arguments. Saxon, waived supra at 806
Turning transcript actually to what the reveals was wit- said agree majority nesses at I cannot with the that there is merit the DOT’s assertion that the admission of Batcher’s and Beak’s statements constitutes reversible error under Transp. Poole, judice striking
The case sub stands in contrast to the situation in *11 erroneously Poole, in which we held that the trial cоurt had allowed showing the condemnee to introduce evidence that the denial of her zoning requests years made more than 10 before the date of by attempt property had been influenced the DOT in an to obtain her quotations transcript at a lower reveal, cost. As the wit- judice implied ness in the case sub indicated or otherwise that the responsible deny- DOT was for or had influence over the decision permits ing any impropriety or even that there was in the denial permits relitigat- of those so as to intimate that the condemnees were ing proceeding. only in issue the condemnation The inti- remarks mating such matters were made trial court and counsel was made. cannot serve as the basis for Palmer, reversal where no supra. Saxon, Pulliam, “ relevancy ‘Questions evidence, include the issue materiality, are [trial] court, and in the absence an abuse of judicial discretion, this [Cit.] ‘[B]road court will not interfere.’ discre- reposed tion is in the trial court whose decision will be disturbed except demonstrating in cases a clear abuse of that discretion.’ Metropolitan Property Shepherd, &c. Ins. Co. v. I find no abuse the trial court’s dis- admitting testimony. cretion my remaining
6. Based on the above discussion review of enumerations, I can find no reversible error in the trial court’s order denying the DOT’s motion I for new trial. Since would affirm the judgment respectfully majority’s in Case I No. dissent opinion in that case. — 29, 1988 Decided November
Rehearing December denied Mackin, Mackin, Beryl H. S. Weiner, Yancey & Dennis Dwyer, General, Bowers, appellant. Weiner, Attorney Michael J. Peek, Jr., Peek, Garland Griz- James Whaley, J. Corbett Peek & Wills, Jr., Sweetnam, W. zard, Martin, & D. Warren Simons Michael for appellees. FEDERAL et al. v. MITCHELL COUNTY
76813. PALMER & ASSOCIATION. LOAN SAVINGS
(377 SE2d
Banke, Presiding Judge. association to appellee savings and loan appellants sued the had re- appellee $24,031.07 proceeds recover insurance paid ac- casualty proceeds had been from a insurer. These ceived appel- policy terms of of hazard insurance cordance with the subject real which was purchased covering lants had certain receiving the insur- security appellee. Prior to to a deed held benefits, ownership appellee acquired ance had sale contained through power provisions the exercise of the appellee’s security granting is from an order deed. motion summary denying appellants’ judgment motion for complaint. respect sought with to the relief deed, security appellants required by As the terms under the insurance primary loss-payee designated appellee security deed policy, by lender. The virtue of its status secured specified appellee acquired fore- the event the *12 closure, interest of acquire right, “all title and borrower would also proceeds thereof any policies insurance and to acquisition resulting damage prior to the sale or to the prior immediately ... to the extent of the sums secured this deed Also, contract itself con- acquisition.” to such sale or the insurance mortgage tained what is known as a “New York standard” or “union” clause, “Loss, any, if under providing, pertinent part as follows: , . . this insur- payable mortgagee shall be . policy, to the (or trustee) therein, shall only mortgagee ance as the interest of the or no- proceedings other any not be invalidated ... foreclosure or the title property, change tice sale nor relating ownership . . .” of the property. Í985, policy, during
In the term of the August of sale was fire. In a foreclosure damaged by September