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concluding that when the trial court relies upon inadmissible hearsay, we must reverse since we can no longer presume trial court relied upon legal testimony and discounted incompetent evidence
Summary of this case from Hwa Props., Inc. v. Cmty.Opinion
52216.
ARGUED MAY 3, 1976.
DECIDED JULY 6, 1976. REHEARING DENIED JULY 20, 1976.
Confirmation of sale. Cobb Superior Court. Before Judge Ravan.
Hansell, Post, Brandon Dorsey, Gary W. Hatch, for appellant.
Harland, Cashin, Chambers, Davis Doster, James R. Harland, Jr., Samuel F. Doster, Jr., for appellees.
The mortgagee appeals from the order denying confirmation of his foreclosure sale of an apartment project to himself under the power of sale in his security deed. Held:
"In confirmation proceedings, the judge sits as a trier [or trior] of fact, and his findings and conclusions have the effect of a jury verdict. He hears the evidence and his findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. West v. West, 228 Ga. 397 (1) ( 185 S.E.2d 763); Classic Enterprises, Inc. v. Continental Mtg. Investors, 135 Ga. App. 105 ( 217 S.E.2d 411). What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trial court is the judge of the credibility of the witnesses and of the weight to be given the evidence. Classic Enterprises, Inc. v. Continental Mtg. Investors, supra; Mustang Transp., Inc. v. W. W. Lowe Sons, Inc., 123 Ga. App. 350 (3) ( 181 S.E.2d 85)." American Century Mtg. Investors v. Strickland, 138 Ga. App. 657 (1). See also Thompson v. Maslia, 127 Ga. App. 758 (4) ( 195 S.E.2d 238).
The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale, its "market value," which has been defined as "the price property would command in the market" (Black's Law Dict. (Revd. 4th Ed.), citing State Hwy. Board v. Bridges, 60 Ga. App. 240 ( 3 S.E.2d 907)) or "the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so." Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101, 102, and cit. "What it may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale ...," but even where there is evidence in the record of a different value after the sale, this is not controlling; "[i]f that were true a confirmation could always be attacked because of a subsequent change in value." Thompson v. Maslia, 127 Ga. App. 758, 764 (4), supra. Contrary to the above principle, however, the trial judge, sitting as the trior of facts in this case, indicated during the confirmation hearing that he intended to consider, not evidence of a different value after the foreclosure sale, but the speculative market value at some indefinite time in the future. Thus his judgment was apparently based upon an erroneous theory of law.
"[I]t has been held that the reasons assigned by the judge are not a part of the judgment, [cits.], and that where the judgment of the trial court is proper and legal for any reason it will be affirmed, regardless of the reason assigned. [Cits.]" Turner v. Baggett Transp. Co., 128 Ga. App. 801, 806 (4) ( 198 S.E.2d 412). See also State of Ga. v. Johnson, 214 Ga. 607, 611 ( 106 S.E.2d 353); Hill v. Willis, 224 Ga. 263, 267 (3) ( 161 S.E.2d 281); Cherry v. State, 135 Ga. App. 819 (2) ( 219 S.E.2d 41). However, where, as here, the trial judge as the trior of facts indicates his intention to consider inadmissible matter, the "right-for-any-reason rule" is not applicable, since we can no longer indulge the presumption that the trial judge selected the legal testimony and discounted the effect of the incompetent evidence in molding his judgment. See Cherry v. State, 135 Ga. App. 819 (2), supra; Harrison v. State, 136 Ga. App. 71 (2) ( 220 S.E.2d 77) and cit.
Judgments based upon erroneous theories of law are generally reversed in the appellate courts. See, e.g., Dept. of Revenue v. Graham, 102 Ga. App. 756 (3) ( 117 S.E.2d 902) (1960) and Travelers Ins. Co. v. Burch, 114 Ga. App. 723 ( 152 S.E.2d 697) (1966). See also United States v. U.S. Gypsum Co., 333 U.S. 364 ( 68 SC 525, 92 LE 746) (1948); Benton v. Blair, 228 F.2d 55 (5th Cir. 1955); Smallfield v. Home Ins. Co. of N.Y., 244 F.2d 337 (9th Cir. 1957); J. D. Hedin Construction Co. v. F. S. Bowen Electric Co., 273 F.2d 511 (D.C. Cir. 1959). Although there is some evidence in the record which, if believed, would have supported a denial of the confirmation, the judgment denying confirmation must be reversed and the case be remanded and re-tried under the correct theory of law, since we cannot determine whether the judge would have weighed the evidence as he did if he had been relying on the correct theory.
Judgment reversed and remanded with direction. Bell, C. J., and Clark, J., concur.