Rhodes v. Top Dog, Inc.

434 S.E.2d 578, 209 Ga. App. 777, 93 Fulton County D. Rep. 2930, 1993 Ga. App. LEXIS 983

• Court: Court of Appeals of Georgia
• Decided: July 16, 1993
• Docket: A93A0016
• Status: Published

Opinions

Andrews, Judge.

Top Dog, Inc. brought suit against defendant/appellant Jan Rhodes seeking to recover monies allegedly loaned to Rhodes, its employee, which he failed to repay. According to the complaint, Rhodes was to repay the amounts owed from commissions he earned while in Top Dog’s employ.

The case was tried before the court sitting without a jury and was not reported. Both sides agree here, however, that Top Dog introduced five checks made payable to Rhodes. The checks introduced at trial contained the following notations: check no. 262 “comm [illegible] to be repaid in full”; check no. 300 “commission advance to be repaid”; check no. 312 “advance on commission to be repaid in full”; check no. 325 “advance to be repaid in full”; check no. 369 “comm advance to be repaid [illegible].” Judgment was entered for Top Dog on July 8, 1991. On August 5, 1991, Rhodes filed a motion to set aside the verdict or, in the alternative, motion for new trial. In support of his motions Rhodes filed copies of the five “cancelled” checks, which he had obtained from Top Dog’s bank following trial.

Bradley, the president of Top Dog, wrote the checks in issue and his testimony at trial as to whether “to be repaid” was on the checks when they were presented to Rhodes was uncertain.¹ He testified that he could not recall specifically these checks, but that it was not unusual for him to make notations such as this on company checks after they were returned to him by the bank after cashing.

Rhodes, originally proceeding pro se, was represented by counsel at trial and here. According to counsel for Top Dog and not disputed on the record here, the issue of when the language was placed on the check was addressed below. No discovery was made by Rhodes before the trial, but the judge offered a continuance in order to afford an opportunity to obtain bank copies of the checks, which continuance was refused by Rhodes’ counsel.²

“[T]he grounds upon which [Rhodes] sought to set aside . . . , i.e., ‘fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant,’ are equitable in nature, being identical to those which previously constituted the basis for a complaint in equity to set aside a judgment. In 1986, OCGA § 9-11-60 (d) was amended so as to authorize the bringing of a motion to set aside on these grounds. . . . [Cits.] ‘ “(A) petition in equity would have been to no avail if [Rhodes] knew or should have in the exercise of reasonable diligence discovered th(e) ground (asserted). (Cit.) This same diligence rule applies where appellant uses a motion to set aside the judgment and he is precluded from using the ground which he had known or could have discovered through reasonable diligence.” (Cits.)’ Marshall v. Marshall, 257 Ga. 494, 495 (360 SE2d 572) (1987).” Lee v. Henson, 198 Ga. App. 701, 702 (402 SE2d 548) (1991).

While the court’s specific finding of fact that the notation was on the checks when they were presented to Rhodes may be erroneous and not supported by adequate evidence in the record, that conclusion alone is not enough to merit reversal of the judgment. The primary factual issue before the court was whether there was an oral agreement between the parties regarding the source of the repayment, i.e., solely from future earned commissions payable by Top Dog or from other funds of Rhodes as well. While Brady’s testimony concerning when the notation was placed on the checks was uncertain, he apparently testified that the agreement was that the money would be repaid in its entirety from whatever source and, whenever he added the notation to the check, it supported his understanding of the agreement. Rhodes’ contention was that the source for repayment was only future earned commissions and since he did not earn that much, he did not owe it. See, e.g., Biles v. Home Interiors &c., 112 Ga. App. 21 (143 SE2d 566) (1965).³ Had the trial judge concluded, as a matter of fact, that the notations were not on the checks when presented to Rhodes, as contended by him and shown by the new copies, this still would not mandate a finding in Rhodes’ favor on the motion pursuant to OCGA § 9-11-60 (d) (2), as discussed above, since that evidence was previously available to him. Nor would it prove that the advances or draws were part of the original hiring agreement as opposed to a separate loan situation.

Likewise, there is no basis for the grant of a new trial on the basis of newly discovered evidence pursuant to OCGA § 5-5-23. Boatwright v. Eddings, 180 Ga. App. 742 (350 SE2d 291) (1986).

A decision right for any reason should not be set aside and the judgment is affirmed. Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 919 (7) (423 SE2d 257) (1992), citing Dorminy v. Dorminy, 242 Ga. 326 (249 SE2d 49) (1978).

Judgment affirmed.

McMurray, P. J., Beasley, P. J., Cooper and Smith, JJ., concur. Pope, C. J., Birdsong, P. J., and Blackburn, J., dissent. Johnson, J., not participating.

1 It is not disputed that the notations regarding repayment are in his handwriting, the same as that on the rest of the check faces.

2 Since check no. 300 was marked “deposit only” and endorsed by both Mr. and Mrs. Rhodes, it obviously went into his own checking account, also maintained at Barnett Bank, the issuing bank. Copies of the deposit items, including check no. 300, were available to him on his own account without even the necessity of formal discovery proceedings. No reason for not having obtained the copies of all the checks, including this one, in the months preceding trial is offered.

3 This case and the entire line of cases relied upon by Rhodes below was limited in the whole court case of Cota v. Alexander, 123 Ga. App. 219 (180 SE2d 293) (1971). This court restricted it to situations where a “draw account” was a part of the original hiring agreement or, at the time of the original hiring agreement, there was agreement that advances would be made on future earned commissions, not to situations where, after employment, the employer makes personal loans to an employee from future advances. See Boushell v. Foxworth, 143 Ga. App. 646, 647 (2) (239 SE2d 539) (1977).